Delhi District Court
Gulshan Kumar Jain vs Rajeev Jain And Anr on 29 January, 2026
IN THE COURT OF DISTRICT JUDGE-02: NORTH ROHINI
COURTS COMPLEX: DELHI
CNR No. DLNT01-003152-2024
CS DJ No. 204/2024
IN THE MATTER OF:-
Sh. Gulshan Kumar Jain (Since Deceased Through L.R.)
Sh. Deepak Kumar
R/o B - 65, Ground Floor,
Sector - 9, Ahinsa Vihar,
Rohini, New Delhi - 110085. .....Plaintiffs
Versus
1. Sh. Rajeev Jain
S/o Late Sh. Gulshan Kumar Jain
2. Smt. Kiran Jain
W/o Sh. Rajeev Jain
Both At :
B - 66, First Floor,
Sector - 9, Ahinsa Vihar,
Rohini,
Delhi - 110085. .....Defendant
Date of Filing : 13/01/2015
Date of Conclusion of Argument : 05/01/2026
Date of Order Judgment : 29/01/2026
Suit for Mandatory Injunction and Occupational Charges/Damages in
respect of the portion/Two Rooms, One Drawing - cum - Dining Room,
CS DJ No. 204/24 Gulshan Kumar Jain & Ors. Vs. Rajeev Jain & Anr. Page No. 1 of 53
Balcony, Kitchen and Toilet of Flat B - 66, Plot No. 27/1, First Floor,
Sector - 9, Ahinsa Vihar, Rohini, New Delhi - 110085.
JUDGMENT
1. Vide this judgment, this Court shall decide the present suit filed by the plaintiff for Mandatory Injunction and Occupational Charges/Damages in respect of the portion/Two Rooms, One Drawing - cum - Dining Room, Balcony, Kitchen and Toilet of Flat B - 66, Plot No. 27/1, First Floor, Sector - 9, Ahinsa Vihar, Rohini, New Delhi - 110085. Tersely put: father of first defendant- Sh. Gulshan Kumar Jain seeks possession of suit property from his son-Sh. Rajeev Jain and daughter in law-Smt Kiran Jain. Defences interalia are that suit property is ancestral wherein Sh. Rajeev Jain has a share, contribution was made for purchase of suit property by Smt Kiran Jain. Further defence is that Suit property is matrimonial home of Smt Kiran Jain.
FAMILY RELATIONSHIP
2. Sh. Gulshan Kumar Jain - original plaintiff (now deceased) had a wife Smt. Usha Kanta Jain (now deceased) and two sons (i.e. defendant. 1 - Sh. Rajeev Jain and Sh. Deepak Jain) and a daughter (Smt. Jyoti Jain). Second defendant Smt Kiran Wife of Sh. Rajeev Jain is daughter in law of Sh. Gulshan Kumar Jain - original plaintiff. Amended memo of parties dated 13/01/2026 was filed. Same is taken on CS DJ No. 204/24 Gulshan Kumar Jain & Ors. Vs. Rajeev Jain & Anr. Page No. 2 of 53 record wherein Sh. Gulshan Kumar Jain - Original plaintiff is represented by his other Son Sh. Deepak Kumar Jain.
PLAINTIFF's CASE
3. The suit property in the present case is Flat B - 66, Plot No. 27/1, First Floor, Sector - 9, Ahinsa Vihar, Rohini, New Delhi - 110085.
4. It is case of the original plaintiff/father that a part of the flat is in the possession of the defendants. The part consisting of Two Rooms, One Drawing-Cum-Dining Room, Balcony, Kitchen and Toilet is in possession of defendants. The present suit has been filed with respect to this portion only (shown in red colour in the Site Plan). That the remaining portion of the Flat has been given by the original plaintiff (Sh. Gulshan Kumar Jain) to his daughter namely Smt. Jyoti Jain for her to stay in that with her family.
5. It is case of the plaintiff that defendants are son and daughter in law of Sh. Gulshan Kumar Jain. The portion in possession of defendants was given on permissive user/licence basis. The licence was revoked vide Legal Notice dated 01/02/2014. In reply to Legal Notice, the defences taken are :-
a. Defendants are in adverse possession. b. Defendant no. 1 is part owner of the suit property. c. Suit property is matrimonial house of defendant no. 2. CS DJ No. 204/24 Gulshan Kumar Jain & Ors. Vs. Rajeev Jain & Anr. Page No. 3 of 53 d. Under family arrangement of 2006, property bearing no. B - 66,
Ahinsa Vihar, First Floor has fallen in share of defendant no. 1 .
6. It is case of the plaintiff that after termination of licence, defendants have no right in the suit property. Occupational charged/damages @ Rs.20,000/- per month are claimed as per market rate.
7. For ease of reference, the prayers made in the suit are as under :-
PRAYER "(i) A decree for Mandatory Injunction in favour of the plaintiff against the defendants thereby directing the defendants to remove themselves with their belongings from the suit property and handover the vacant peaceful possession of the portion of property bearing Flat B - 66, Plot No. 27/1, First Floor, Sector - 9, Ahinsa Vihar, Rohini, New Delhi - 110085 to the plaintiff.
(ii) And a decree for further occupation charges/damages @ Rs. 20,000/- per month pendente-lite and till the handing over the peaceful, vacant, physical possession of the suit property by the defendants to the plaintiff.
(iii) Cost of the suit be also awarded to the plaintiff.
CS DJ No. 204/24 Gulshan Kumar Jain & Ors. Vs. Rajeev Jain & Anr. Page No. 4 of 53 Any other relief as this Hon'ble Court may deem fit and proper in the facts of the case may also be passed in favour of the plaintiff and against the defendant."
DEFENDANT'S CASE
8. Joint Written Statement was filed on behalf of defendants. Preliminary objections have been taken that this Court does not have pecuniary jurisdiction. Proper Court fees has not been paid.
9. It is case of the defendants that defendant no. 1 is 1/3rd owner of the properties i.e. property bearing no. B - 66, Ahinsa Vihar, Sector - 9, Rohini, Delhi and property bearing no. B - 65, Ahinsa Vihar, Sector - 9, Rohini, Delhi. It is case of the defendants that contribution by way of cash was made for purchase of these flats. Smt Kiran Jain was in service of Oriental Bank of Commerce so she has availability of funds.
10. It is further the case of the defendants that plaintiff had sold ancestral properties at Meerut. The suit properties were purchased after use of funds by sale of ancestral property. An oral family partition with defendant no. 1 was executed and property bearing no. B - 66, Ahinsa Vihar, Sector - 9, Rohini, Delhi was to fall in share of defendant no. 1 (In Para No. 5 of the Written Statement, in preliminary objections by mistake property number is wrongly mentioned as A - 66 instead of B -
66).
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11. It is further the case of the defendants that for last 24 years, the defendants are in open and hostile possession against the plaintiff. Present suit is barred by limitation. Suit property is matrimonial home of defendant no. 2. On these grounds, dismissal of suit is prayed for.
REPLICATION
12. Replication dated 23/03/2015 to the Written Statement was filed. In essence, averments of the Written Statement were denied. Averments of the plaint were reiterated.
ISSUES
13. From the pleadings of the parties, following issues were framed by the Court vide order dated 22/07/2015 :-
1. Whether the plaintiff is entitled to the decree of mandatory injunction, as prayed for? OPP
2. Whether the plaintiff is entitled to the decree of damages, as payed for? OPP
3. Whether the suit filed by the plaintiff has not been properly valued and the requisite Court fees thereupon has not been paid? OPD
4. Relief.
14. Vide order dated 21/02/2018, Hon'ble High Court of Delhi had directed recasting of issues, as per law.
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15. From the pleadings of the parties, issues were re-framed by the Court vide order dated 24/07/2024. for ease of reference, issues are reproduced below :-
1. Whether the plaintiff is entitled Mandatory Injunction by way of directing the defendant to vacate the portion of the suit property bearing No. B - 66, Plot No. 27/1, First Floor, Sector - 9, Ahinsa Vihar, Rohini, New Delhi - 110085 which is in occupation of the defendants ? OPP
2. Whether the plaintiff is entitled to Damages @ Rs. 20,000/- per month, pendente-lite and till handing over the vacant possession of suit property by the defendants to plaintiff ? OPP
3. Whether the plaintiff is entitled to costs ? OPP
4. Whether the suit is not property valued for the purposes of pecuniary jurisdiction and court fees ? OPD
5. Whether the suit property was purchased after selling ancestral property in Meerut, UP and thus, the defendant no. 1 has a share in the same as owner to the extent of 1/3rd share ? OPD
6. Whether the defendants have contributed money for purchase of the suit property ? OPD
7. Whether the defendant No.1 is owner of suit property by virtue of an oral family partition ? OPD
8. Whether the suit of the plaintiff is barred by law of Limitation ? OPD CS DJ No. 204/24 Gulshan Kumar Jain & Ors. Vs. Rajeev Jain & Anr. Page No. 7 of 53
9. Whether the suit property is matrimonial home of defendant no.2 and if so, its effect ? OPD
10. Relief.
16. It is noticed in order dated 24/07/2024 that Ld. Counsel for the parties state that they will lead evidence in connected suit bearing CS DJ No. 57718/16, titled as 'Rajeev Kumar Jain & Anr. Vs. Gulshan Kumar Jain & Ors.' . The evidence already led in that case, be also read in the present case.
17. The evidence lead in CS DJ No. 57718/16, titled as 'Rajeev Kumar Jain & Anr. Vs. Gulshan Kumar Jain & Ors.' is as under :-
PLAINTIFF EVIDENCE S. No. Name of witness Remarks/documents tendered
1. PW1 - Rajeev Jain PW1 tendered his evidence by way of affidavit Ex. PW1/A. He relied upon the following documents :-
1. The photocopy of application form for membership dated 21/03/1949 in the name of Sh. Salig Ram Jain in Shri Jain Pursharthi Housing Cooperative Society Ltd., Thirthanker Mahavir Mark, Jain Nagar, Meerut City - 250002 as Mark 'A'.
2. The photocopy of declaration form dated 10/02/1951 by Sh. Salig Ram Jain of Shri Jain Pursharthi Housing Cooperative Society Ltd., as Mark 'B'.
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3. The photocopy of letter dated 22/07/1988 by Secretary of Shri Jain Pursharthi Housing Cooperative Society Ltd., regarding transfer of Plot No. C/32 in the name of Smt. Devki Devi as Mark 'C'.
4. The photocopy of letter dated 30/04/1989 by Secretary of Shri Jain Pursharthi Housing Cooperative Society Ltd., regarding transfer of Plot No. C/32/1 in the name of Sh. Gulshan Kumar Jain and Sh. Satish Kumar Jain as Mark 'D'.
5. The photocopy of letter by Secretary of Shri Jain Pursharthi Housing Cooperative Society Ltd., regarding transfer of Plot No. C/32/1 in the name of Smt. Sushma Jain W/o Sh. Arun Kumar from Sh. Gulshan Kumar as Mark 'E'.
6. The photocopy of affidavit dated 25/09/1993 of Sh. Gulshan Kumar Jain given to Shri Jain Pursharthi Housing Cooperative Society Ltd., regarding transfer of Plot No. C/32/1 as Mark 'F'.
7. The photocopy of affidavit / No objection dated 20/09/1993 by Sh. Deepak Kumar Jain given and Sh. Rajeev Kumar Jain regarding transfer of Plot No. C/32/1 as Mark 'G'.
8. The photocopy of the certified copy of Conveyance Deed dated 09/10/2013 by DDA in the name of Smt. Usha Kanta Jain in respect of B-65, Ahinsa CGHS Ltd., Plot No. 27/1, Sector - 9, Rohini, Delhi - 110085 as Mark 'H'.
9. The photocopy of the certified copy of Conveyance Deed dated 21/06/2013 in the name of Sh. Gulshan Kumar Jain in respect CS DJ No. 204/24 Gulshan Kumar Jain & Ors. Vs. Rajeev Jain & Anr. Page No. 9 of 53 of B-66, Ahinsa CGHS Ltd., Plot No. 27/1, Sector - 9, Rohini, Delhi - 110085 as Mark 'J'.
10. Photocopy of death certificate of Smt. Usha Kanta Jain dated 16/11/2015 as Ex. PW1/1 (OSR).
11. Photocopy of receipt No.11573 dated 20/12/2015 in respect of Flat No. B-66, of Ahinsa Cooperative Group Housing Society, Sector -9, Rohini, Delhi as Ex. PW1/2 (OSR).
12. Photocopy of electricity bills of Flat No. 66-B, Ahinsa Vihar, in the name of Nirmal Kumar Jain dated 09/08/2013 and 28/04/2014 mentioned in the affidavit as Ex. PW1/3 and Ex. PW1/4 respectively were de-exhibited and marked as Mark 'L' and Mark 'M' as the originals of the same were in another case which is pending in the court of Sh. Rakesh Kumar, Ld. ASCJ, North, Rohini.
13. Photocopy of house tax receipt dated 27/06/2015 in respect of B-66, AhinsaVihar, Sector - 9, Delhi for the year 2015 - 2016 as Ex. PW1/5 (OSR).
14. The Site plan of B-66, Ahinsa Vihar, Sector
- 9, Rohini, Delhi as Ex. PW1/6 & Ex. PW1/7.
15. Photocopy of certified copy of sale deed dated 04/05/2011 in favour Jyoti Jain in respect of entire Second Floor of property bearing No. 162, Pkt. 26, Sector - 24, Rohini, Delhi, registration No.7018, Book No.1, Vol. No. 4370, Page No. 121 - 129, registered with the office of Sub-Registrar -
VI-C, Sector - 11, Rohini, Delhi which is CS DJ No. 204/24 Gulshan Kumar Jain & Ors. Vs. Rajeev Jain & Anr. Page No. 10 of 53 mentioned as Mark 'K' was exhibited as PW4/1.
2. PW2 - Smt. Kiran Jain She tendered her evidence by way of affidavit Ex.
PW2/A. She relied upon the following documents:
1. The relevant record of membership No. 1515 in the name of deponent for the period 01/04/1995 to 31/03/1997 as Mark 'A'.
2. The relevant statement of account of PPF Account in the name of deponent i.e. Kiran Jain, ID No. 118255 9 (New ID No. 5119619) for the period 01/04/1996 to 31/03/1998 as Mark 'B'.
3. PW3 - Sh. Satyavir He is a summoned witness. He brought the Singh, Deputy Manager, statement for the period 01/04/1996 to 31/03/1998 posted at PNB Head of PF (PF No. 118255) account of Smt. Kiran Office, PF and Pension Jain. The certified copy of the same is Ex. PW3/1 Department, New (running into three pages) (colly.). Delhi.
4. PW4 - Sh. Sunil Kumar, Being summoned witness, he brought the certified Data Entry Operator copy of the sale deed dated 04/05/2011 in favour from the office of Sub- of Jyoti Jain in respect of entire second floor of Registrar - VI-C, property bearing No. 162, Pocket - 26, Sector -
Ambedkar Bhawan, 24, Rohini, Delhi registration No. 7018, Book Rohini, Delhi. No.1, Vol. No. 4370, page No.121 - 129. The same is Ex. PW4/1 (running into 10 pages) (colly) (OSR).
He also brought the original register and Form A. Certified copy of Form 'A' is Ex. PW4/2 (OSR).
5. PW5 - Sh. Rakesh He is also a summoned witness. On 15/03/2023, Kumar Bhatia, He had brought the record of membership No. President, Oriental Bank 1515 in the name of Kiran Jain. The photocopy of of Commerce, the membership form dated 31/12/1994 is Ex. Cooperative Thrift and PW5/1 (OSR). He deposed that there is no other Credit Society, office at : record except the Ex. PW5/1 as the same is very CS DJ No. 204/24 Gulshan Kumar Jain & Ors. Vs. Rajeev Jain & Anr. Page No. 11 of 53 PNBEA Delhi Union old and is not available. He has seen the Office, First Floor, photocopy of the loan account of the society for Harsha Bhawan, E- the period 1996 from the court file which was Block, Connaught Place, marked as Mark 'A' (running into three pages) New Delhi. (colly.). He deposed that the same was procured by Smt. Kiran Jain from Sh. Mukesh Khanna who sees the affairs of our society as told by Smt. Kiran Jain.
On 24/09/2025, he was again summoned and had brought the summoned record i.e. Confirmation Entry (Point 'X' to 'X1') as Member shown in the registry of society in the name of Smt. Kiran Jain. Same is Ex. PW5/2 (OSR) and the outstanding amount of Rs. 15,812/- (Point 'Y' to 'Y1') marked as Mark 'PX - 1'.
On Court question, witness had clarified that Mark PX-1 is a photocopy. Original of the same is not available as the same has been submitted to Registrar of Cooperative Society.
6 PW6 - Sh. Trilok Jain He was a summoned witness and had brought the summoned record. He deposed that the documents at Serial No. 1 to 7 which were marked on 15/03/2023 in the examination-in-chief of PW1 are now exhibited.
1. The photocopy of application form for membership dated 21/03/1949 in the name of Sh. Salig Ram Jain in Shri Jain Pursharthi Housing Cooperative Society Ltd., Thirthanker Mahavir Mark, Jain Nagar, Meerut City - 250002 as Mark 'A' was exhibited as Ex. PW6/1 (OSR).
2. The photocopy of declaration form dated 10/02/1951 by Sh. Salig Ram Jain of Shri Jain Pursharthi Housing Cooperative Society Ltd., as Mark 'B' was exhibited as Ex. PW6/2 (OSR).
3. The photocopy of letter dated 22/07/1988 by Secretary of Shri Jain Pursharthi Housing CS DJ No. 204/24 Gulshan Kumar Jain & Ors. Vs. Rajeev Jain & Anr. Page No. 12 of 53 Cooperative Society Ltd., regarding transfer of Plot No. C/32 in the name of Smt. Devki Devi as Mark 'C' was exhibited as Ex. PW6/3 (OSR).
4. The photocopy of letter dated 30/04/1989 by Secretary of Shri Jain Pursharthi Housing Cooperative Society Ltd., regarding transfer of Plot No. C/32/1 in the name of Sh. Gulshan Kumar Jain and Sh. Satish Kumar Jain as Mark 'D' was exhibited as Ex. PW6/4 (OSR).
5. The photocopy of letter by Secretary of Shri Jain Pursharthi Housing Cooperative Society Ltd., regarding transfer of Plot No. C/32/1 in the name of Smt. Sushma Jain W/o Sh. Arun Kumar from Sh. Gulshan Kumar as Mark 'E' was exhibited as Ex. PW6/5 (OSR).
6. The photocopy of affidavit dated 25/09/1993 of Sh. Gulshan Kumar Jain given to Shri Jain Pursharthi Housing Cooperative Society Ltd., regarding transfer of Plot No. C/32/1 as Mark 'F' was exhibited as Ex. PW6/6 (OSR).
7. The photocopy of affidavit / No objection dated 20/09/1993 by Sh. Deepak Kumar Jain given and Sh. Rajeev Kumar Jain regarding transfer of Plot No. C/32/1 as Mark 'G' was exhibited as Ex. PW6/7 (OSR).
7. PW7 - Sh. Shubham He was a summoned witness and had brought the Nautiyal, Manager, summoned record i.e. Confirmation Letter dated Punjab National Bank 08/09/1995 reflecting the loan amount of the (Head Office), PF and account no. 118255 in the name of Smt. Kiran Pension Department, Jain for total loan amount of Rs. 11,300/- and New Delhi. installment of Rs. 550/-. Same is Ex. PW7/1 (OSR).
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18. Plaintiff evidence was closed on 02/12/2023 in connected case.
19. DEFENDANT EVIDENCE S. No. Name of witness Remarks/documents tendered
1. DW1 - Sh. Deepak Jain He tendered his Evidence by way of affidavit Ex. DW1/A. He relied upon the following documents:
1. The property bearing No. B-65, Sector - 9, Ahinsa Vihar, Rohini registered in the name of Smt. Usha Kanta Jain W/o Sh. Gulshan Kumar Jain by virtue of documents already Mark 'H' as Ex. DW1/1 (two pages, back to back, colly) (OSR).
2. The property bearing No. B-66, Plot No. 27/1, Sector - 9, Ahinsa Vihar, Rohini registered in the name of Sh.
Gulshan Kumar Jain i.e. defendant no.1 by virtue of documents i.e. Conveyance Deed already Mark 'J' was exhibited as Ex. DW1/2 (one page, back to back, colly.) (OSR).
3. Will executed by Smt. Usha Kanta Jain already Mark A and is registered as Regd. No. 20, Book No. 3, Vol. No. 291, on Page 59 to 61 dated 29/01/2013 was exhibited as Ex.DW1/3 (six pages, colly.) (OSR).
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4. Will executed by defendant no.1 Gulshan Kumar Jain already Mark 'B' and was registered as Regd. No. 383, Book No. 3, Vol. No. 384, on Page 163 to 165 dated 08/02/2016 was exhibited as Ex. DW1/4 (three pages, colly., back to back) (OSR).
2. DW2 - Sh. Abhay Kumar He tendered his evidence by way of affidavit Jain Ex.DW2/A. He relied upon the documents Ex. DW1/4 which is signed by Sh. Late Sh.
Gulshan Kumar at point A, point B, point C and point D in his presence and signed by him at point E and point F and signed by Sh.
Sunil Jain at point G and point H in the office of sub-registrar and signed by all in the presence of each other.
3. DW3 - Sh. Puneet Jain He tendered his evidence by way of affidavit Ex.DW3/A and relied upon the documents already Ex.DW1/3 which is signed by Smt. Usha Kanta Jain at points A, B, C, D and point E in his presence and signed by him at point F and G and signed by Sh. Vijay Kumar Wadhwa at point H and point I in the office of sub-registrar and signed by all in the presence of each other.
20. Defendant evidence was closed on 04/01/2025 in connected case.
21. Vide order dated 07/07/2025, application under Section 151 CPC filed on behalf of plaintiff for recalling PW3 - Sh. Satyaveer Singh CS DJ No. 204/24 Gulshan Kumar Jain & Ors. Vs. Rajeev Jain & Anr. Page No. 15 of 53 and PW5 - Sh. Rakesh Kumar Bhatia or concerned official from PNB Head Office and PNBEA, Delhi Union was allowed. PW7 - Sh. Rakesh Kumar Bhatia was examined, cross-examined and discharged. PW5 - Sh. Rakesh Kumar Bhatia was also examined, cross-examined and discharged on 24/09/2025 in connected case.
22. ISSUE WISE SUBMISSIONS RAISED AND FINDINGS ARE AS UNDER :-
Issue No. 1 is :
"Whether the plaintiff is entitled Mandatory Injunction by way of directing the defendant to vacate the portion of the suit property bearing No. B-66, Plot No. 27/1, First Floor, Sector - 9, Ahinsa Vihar, Rohini, New Delhi - 110085 which is in occupation of the defendants ? OPP"
23. Ld. Counsel for plaintiff has argued that defendant no. 1 and his wife i.e. defendant no. 2 are mere licencees. Licence was terminated vide Legal Notice dated 01/02/2014. The same was duly replied on 18/02/2014 by Sh. Rajeev Kumar Jain. On 18/02/2014, Smt. Kiran Jain Wife of Sh. Rajeev Jain had sent a separate reply to Legal Notice.
24. It is further argued by Ld. Counsel for plaintiff that the possession of defendants after termination of their licence is illegal. Relief by way of mandatory injunction is prayed for.
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25. Per contra, Ld. Counsel for defendant has argued that firstly, the suit property is ancestral property and contribution also has been made by Sh. Kiran Jain.
26. It is further argued by Ld. Counsel for the defendant that the Site Plan has not been proved as per law and thus, the suit be dismissed.
SUBMISSIONS RAISED ON BEHALF OF DEFENDANT THAT SUIT PROPERTY IS ANCESTRAL FIRST ARGUMENT (THAT SUIT PROPERTIES ARE ANCESTRAL)
27. Ld. Counsel for the defendant has argued on this issue that Firstly, vide Ex. PW6/1, the grandfather (Sh. Salig Ram Jain) of Sh. Rajeev Kumar Jain had applied for allotment of ancestral property bearing no. C - 32 with Sh. Jain Pursharthi Housing Cooperative Society Ltd., Thirthanker Mahavir Mark, Jain Nagar, Meerut City - 250002.
28. Secondly, Vide Ex. PW6/3, ancestral property was transferred in name of wife of Late Sh. Salig Ram Jain i.e. in name of Smt. Devki Devi.
29. Thirdly, Vide Ex. PW6/4, this ancestral property was transferred in name of two sons of Sh. Salig Ram Jain namely Sh. Gulshan Kumar Jain and Sh. Satish Jain.
30. It is thus argued that the ancestral property is duly proved and this issue be decided in favour of defendant CS DJ No. 204/24 Gulshan Kumar Jain & Ors. Vs. Rajeev Jain & Anr. Page No. 17 of 53
31. Per contra, Ld. Counsel for the plaintiff has argued that at the time of death of Sh. Salig Ram Jain, Sh. Gulshan Kumar Jain and Sh. Satish were alive. The plaintiff no. 1 and Deepak Jain, who are sons of Sh. Gulshan Kumar Jain, cannot stake a claim the property no. C - 32 as ancestral, as Sh. Gulshan Kumar Jain, their father was still alive at time of death of grandfather of plaintiff no. 1 and Deepak Jain.
32. Per contra, it is also argued on behalf of plaintiff that Ex. PW6/X1 (Colly.) contains affidavit of Smt. Devki Devi which mentions date of death of Late Sh. Salig Ram Jain as 21/09/1964). Since death of grandfather of plaintiff no. 1 and Deepak Jain is after coming in force of Hindu Succession Act,1956 the property in hands of Sh. Gulshan Kumar Jain will be separate property of Sh. Gulshan Kumar Jain.
33. Ld. Counsel for the defendant relies upon case titled as 'Rohit Chauhan Vs. Surender Singh & Ors.', decided by Hon'ble Supreme Court of India on 15/07/2013 to contend that coparcener from moment of his birth gets share in father's property.
34. Per contra to this submission, Ld. Counsel for the plaintiff contends that Late Sh. Gulshan Kumar Jain had died on 31/12/2017 i.e. after after commencement of Hindu Succession Act and thus, the cited judgment is distinguishable.
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35. Ld. Counsel for defendant relies upon case titled as 'Shyam Narayan Prasad Vs. Krishna Prasad', decided by Hon'ble Supreme Court of India on 02/07/2018 to contend that that coparcener from moment of his birth gets share in father's property.
36. Per contra to this submission, Ld. Counsel for the plaintiff contends that Late Sh. Gulshan Kumar Jain had died on 31/12/2017 i.e. after after commencement of Hindu Succession Act and thus, the cited judgment is distinguishable.
SECOND ARGUMENT (THAT C - 32, MEERUT IS ANCESTRAL PROPERTY)
37. It is further argued by Ld. Counsel for defendant that vide joint affidavit Ex. PW6/7 (OSR), Sh. Deepak Kumar Jain and Sh. Rajeev Kumar Jain had stated that property bearing no. C - 32 is ancestral. No Objection was given that father of the deponents may dispose off the same. Vide affidavit Ex. PW6/6, Sh. Gulshan Kumar Jain had sold the property to Smt. Sushma Jain for Rs.1.6 lacs on 25/09/1993.
38. Per contra, Ld. Counsel for plaintiff contends that title in the movable property cannot pass by mere admission. Mere mention in affidavit regarding ancestral nature is not sufficient in law to prove nature of property as ancestral. In Para No. 2 of Ex. PW6/7, it is mentioned that, "ancestral property is owned by our father Sh. Gulshan Kumar Jain" which shows property was separate property of father of parties.
CS DJ No. 204/24 Gulshan Kumar Jain & Ors. Vs. Rajeev Jain & Anr. Page No. 19 of 53 ADDITIONAL SUBMISSIONS RAISED ON BEHALF OF PLAINTIFFS
39. Ld. Counsel for plaintiff has argued that Smt. Usha Kanta Jain was owner of flat bearing no. B - 65. She had made a Will which was registered on 29/01/2013 [Ex. DW1/3 (OSR)]. It is argued that same was duly proved by DW3 - Sh. Puneet Jain. As per the Will, the property bearing no. B - 65 was bequeathed to her husband Sh. Gulshan Kumar Jain.
40. Per contra, Ld. Counsel for defendant contends that DW3 - Sh. Puneet Jain is son of Smt. Jyoti Jain who is daughter of Late Smt. Usha Kanta Jain. He is an interested witness. To this submission, Ld. Counsel for the plaintiff contends that Sh. Puneet Jain is not beneficiary of the Will and neither is his mother Smt. Jyoti. During cross-examination, the credibility of Sh. Puneet Jain was not demolished.
41. Ld. Counsel for plaintiff has argued that Late Sh. Gulshan Kumar Jain was owner of flat bearing no. B - 65 and also flat bearing no. B - 66. He had made a Will which was registered on 08/02/2016 [Ex. DW1/4 (OSR)]. It is argued that same was duly proved by DW2 - Sh. Abhay Jain. As per the Will, the properties bearing nos. B - 65 and B
- 66 were bequeathed to his son Sh. Deepak Kumar Jain.
42. Per contra, Ld. Counsel for the defendant argued that DW2
- Sh. Abhay Kumar Jain is an interested witness as he had represented the firm M/s Dharam Chand Ladha Mal in a suit on behalf of his mother.
CS DJ No. 204/24 Gulshan Kumar Jain & Ors. Vs. Rajeev Jain & Anr. Page No. 20 of 53 In this suit, Sh. Deepak Jain had taken side of Sh. Abhay Kumar Jain, despite being a defendant and thus, it is clear that Sh. Abhay Kumar Jain is an interested witness. To this submission, Ld. Counsel for the defendant contends that Sh. Abhay Kumar Jain is not beneficiary under the Will. During cross-examination, the credibility of Sh. Abhay Kumar Jain was not demolished.
SUBMISSIONS RAISED ON BEHALF OF PLAINTIFF QUA DEFENDANT'S EVIDENCE(PLAINTIFFS IN MAIN CASE)
43. It is argued by the Ld. Counsel for plaintiff that PW1 - Sh. Rajeev Kumar Jain is not a reliable witness. It is argued that in his cross-examination dated 10/08/2023, PW1 admitted that Sh. Gulshan Kumar Jain was working as Manager, SBI. Smt. Kiran Jain, Wife of PW1 was a clerk. It is argued that since Sh. Gulshan Kumar Jain was thus in a good position, he was financially better off. Thus the case set up that he sought for loan/funds from Sh. Rajeev Kumar Jain and Kiran Jain is improbable. In cross-examination dated 10/08/2023, PW1 stated that no specific money was asked. The exact month of alleged family settlement was not stated. Cross-examination dated 07/10/2023 shows that Sh. Gulshan Kumar Jain was paying the rent of property B - 66, where the family was staying at the relevant period. This shows that Sh. Gulshan Kumar Jain was financially sound as PW1 could not even tell as to what was the rent. In cross-examination dated 02/12/2023, Sh. Rajeev Kumar Jain - PW1 stated that there was gradual change of behaviour of CS DJ No. 204/24 Gulshan Kumar Jain & Ors. Vs. Rajeev Jain & Anr. Page No. 21 of 53 his father towards him. It is further admitted that no HUF existed in the name of her family having my father as Karta to the best of my knowledge. It is further admitted that the ownership documents of properties no. B - 65 & B - 66 were not challenged in any Court of law.
44. Regarding PW2 - Smt. Kiran Jain, it is argued by Ld. Counsel for plaintiff that in her cross-examination dated 10/08/2023, it is her contrary stand that she had personally paid contribution. Direct demand was made to me by Sh. Gulshan Kumar Jain. (This is contrary to stand of PW1 - Sh. Rajeev Kumar Jain in his cross-examination dated 07/10/2023, wherein he had stated that his wife had lent him money from her personal savings. This money was given to his father by him). PW2 in her cross-examination dated 10/08/2023 stated that oral family settlement of the year 1995 was in presence of her father-in-law, mother- in-law and her husband. Same is contrary from stand of PW1, who had stated in his cross-examination dated 10/08/2023 that the family settlement had taken place in his presence, presence of his brother - Deepak Jain and our parents. Further, PW2 - Smt. Kiran Jain admitted that there is no record pertaining to year 1995 and 1996 in judicial file qua her Bank salary. The capacity to give loan at the relevant time of purchase of B - 65 and B - 66 i.e. in year 1996 and 1995 respectively is not proved.
45. Per contra, Ld. Counsel for defendant contends that the transaction regarding demand and supply of funds by Smt. Kiran Jain CS DJ No. 204/24 Gulshan Kumar Jain & Ors. Vs. Rajeev Jain & Anr. Page No. 22 of 53 pertains to the year, 1995. Smt. Kiran Jain - PW2 was cross-examined on 10/08/2023 i.e. after approximately 28 years and thus, slight discrepancies regarding presence of persons during family settlement and whether demand for money was made directly to PW2 - Smt. Kiran Jain or not are bound to occur due to human memory.
SUBMISSIONS ON CONTRIBUTION FIRST ARGUMENT
46. It is argued by Ld. Counsel for defendant that out of funds from sale of ancestral property; properties no. B - 65 & B - 66 were purchased. Since contribution was also made by the defendant they are entitled to share in properties no. B - 65 & B - 66.
47. It is further argued by Ld. Counsel for the defendant that PW7 - Sh. Shubham Nautiyal has proved that Smt. Kiran Jain, who is wife of plaintiff no. 1 had taken loan of Rs.11,300/-. This amount was contributed towards purchase of suit properties.
48. Per contra, Ld. Counsel for plaintiff to this argument contends that PW7 - Sh. Shubham Nautiyal at best proved that loan of Rs. 11,300/- was taken by Smt. Kiran Jain. Whether Sh. Gulshan Kumar Jain demanded contribution from Smt. Kiran Jain and whether Smt. Kiran Jain transferred the amount to Sh. Gulshan Kumar Jain is not proved.
CS DJ No. 204/24 Gulshan Kumar Jain & Ors. Vs. Rajeev Jain & Anr. Page No. 23 of 53 SECOND ARGUMENT
49. It is further argued by Ld. Counsel for the defendant that PW5 - Sh. Rakesh Kumar Bhatia has proved that Smt. Kiran Jain who is wife of plaintiff no. 1 had taken loan. Outstanding amount against loan is of Rs.15,182/-. This amount was contributed towards purchase of suit properties.
50. Per contra, Ld. Counsel for plaintiff in reply to this argument points out that PW5 - Sh. Rakesh Kumar Bhatia only brought the Membership form. He admitted in cross-examination that he had not checked about Mark 'A' in his office before bringing present record. Mark 'A' was not summoned. No other record except Ex. PW5/1 was available (same is stated by PW5 - Sh. Rakesh Kumar Bhatia in his examination-in-chief dated 15/03/2023). He had further admitted in his cross-examination that he cannot tell on what date loan was taken by Smt. Kiran Jain from the Society. Further even during re-examination of PW5 - Sh. Rakesh Kumar Bhatia on 24/09/2025, only membership of Smt. Kiran Jain was proved. The loan amount and further as to when the loan was given was not proved.
THIRD ARGUMENT
51. It is further argued by Ld. Counsel for defendant that PW1 - Sh. Rajeev Jain has proved the photocopy of application form for membership dated 21/03/1949 in the name of Sh. Salig Ram Jain in Shri CS DJ No. 204/24 Gulshan Kumar Jain & Ors. Vs. Rajeev Jain & Anr. Page No. 24 of 53 Jain Pursharthi Housing Cooperative Society Ltd., Thirthanker Mahavir Mark, Jain Nagar, Meerut City - 250002 as Mark 'A'. No objection regarding mode of proof was taken. This Mark 'A' document shows that Smt. Kiran Jain had taken loan of Rs.30,000/- from Oriental Bank of Commerce.
52. Per contra, Ld. Counsel for plaintiff to this argument contends that PW5 could not prove that loan of Rs.30,000/- was given to Smt. Kiran Jain. Further, whether Sh. Gulshan Kumar Jain demanded contribution from Smt. Kiran Jain and whether Smt. Kiran Jain transferred the amount to Sh. Gulshan Kumar Jain is not proved.
53. It is further argued by Ld. Counsel for plaintiff that PW3 in his cross-examination dated 15/03/2023 admitted that Rs.15,300/- were withdrawn by Smt. Kiran Jain on July, 1997. Same is not relevant for contribution regarding purchase of suit properties. As suit property B - 65 was purchased in 1996 and the B - 66 was purchased in 1995 (as averred in Para No. 10 of the plaint by the plaintiffs). Since withdrawal of Rs.15,300/- in July, 1997 is after the suit properties were already purchased, it is not proved that withdrawal was for the purposes of contribution.
FINDING OF THE COURT ON ISSUE NO. 1CS DJ No. 204/24 Gulshan Kumar Jain & Ors. Vs. Rajeev Jain & Anr. Page No. 25 of 53
54. Reference of witnesses is as per their nomenclature in suit bearing CS DJ No. 57718/16, titled as 'Rajeev Kumar Jain & Anr. Vs. Gulshan Kumar Jain & Ors.' FINDINGS ON FIRST ARGUMENT (THAT SUIT PROPERTIES ARE ANCESTRAL) LAW APPLICABLE TRADITIONAL HINDU LAW I.E LAW PRIOR TO 1956 (YEAR WHEN HINDU SUCCESSION ACT 1956 WAS PASSED)
55. When a person 'A' inherited property from his father or fathers father's father or father's father's father then the property in his hand was not to be treated as a self-acquired property but was to be treated as an HUF property in which his son, son's son and son's son's son had a right equal to 'A'.
LEGAL POSITION POST PASSING OF THE HINDU SUCCESSION ACT, 1956, GENERAL STATEMENT OF LAW
56. This traditional position has undergone a change and if a person after 1956 inherits a property from his paternal ancestors, the said property is not an HUF property in his hands and the property is to be taken as a self-acquired property of the person who inherits the same.
TWO EXCEPTIONS TO THE GENERAL STATEMENT OF LAW CS DJ No. 204/24 Gulshan Kumar Jain & Ors. Vs. Rajeev Jain & Anr. Page No. 26 of 53 FIRST EXCEPTION TO THE PROPERTY IN THE HANDS OF A PERSON BEING NOT SELF ACQUIRED
57. Property inherited by such a person say 'A' will be Hindu Undivided Family if Hindu Undivided Family and its properties was existing even prior to the passing of the Hindu Succession Act, 1956. Further the Hindu Undivided Family continued even after passing of the Hindu Succession Act, 1956.
SECOND EXCEPTION TO THE PROPERTY IN THE HANDS OF A PERSON BEING NOT SELF ACQUIRED
58. If after 1956 a person who owns a self-acquired property throws the self-acquired property into a common hotchpotch whereby such property or properties thrown into a common hotchpotch become Joint Hindu Family properties/HUF properties.
REQUIREMENT OF PROOF
59. Facts as to how the properties are Hindu Undivided Family properties is required to be stated as a positive statement in the plaint. Uttering a mantra of the properties inherited being 'ancestral' properties and thus the existence of HUF, does not suffice in law.
60. An averment in the plaint as to when Hindu Undivided Family was created i.e. whether it existed even before 1956 or it was CS DJ No. 204/24 Gulshan Kumar Jain & Ors. Vs. Rajeev Jain & Anr. Page No. 27 of 53 created for the first time after 1956 by throwing the property/properties into a common hotchpotch is required.
61. (Reliance for above statement of law above is placed upon case titled as Sunny (Minor) Vs. Raj Singh decided by Hon'ble Delhi High Court in CS(OS) No. 431 of 2006 on 17/11/2015.) APPLYING LAW TO FACTS OF PRESENT CASE
62. A reference to the written statement shows that is nowhere pleaded in the written statement that as to the specific date/period/month/year of creation of an Hindu Undivided Family before 1956 and it's continuance after 1956 or throwing properties into common hotchpotch. Only a self-serving statement has been made of properties of being 'ancestral' of defendant no. 1.
63. Onus of important issues cannot be discharged by oral self- serving averments in deposition, An Hindu Undivided Family, as already stated above, could only have been created by showing creation of HUF after 1956 by throwing property/properties in common hotchpotch or an HUF existing prior to 1956 and continuing after 1956. There is no pleading or evidence on these aspects, it cannot be held that any HUF existed or was created prior to 1956 and is continuing after 1956.
64. Submissions raised on behalf of defendant that :
Firstly, vide Ex. PW6/1, the grandfather (Sh. Salig Ram Jain) of Sh. Rajeev Kumar Jain had applied for allotment of ancestral CS DJ No. 204/24 Gulshan Kumar Jain & Ors. Vs. Rajeev Jain & Anr. Page No. 28 of 53 property bearing no. C - 32 with Sh. Jain Pursharthi Housing Cooperative Society Ltd., Thirthanker Mahavir Mark, Jain Nagar, Meerut City - 250002.
Secondly, vide Ex. PW6/3, ancestral property was transferred in name of wife of Late Sh. Salig Ram Jain i.e. in name of Smt. Devki Devi.
Thirdly, Vide Ex. PW6/4, this ancestral property was transferred in name of two sons of Sh. Salig Ram Jain namely Sh. Gulshan Kumar Jain and Sh. Satish Jain.
65. Further submissions that nature of the ancestral property is duly proved as after transfer of Meerut property funds were utilized to purchase suit property so ancestral nature of suit properties is proved are without merits. These submissions are rejected as:
66. Perusal of record shows that at the time of death of Sh. Salig Ram Jain, Sh. Gulshan Kumar Jain was alive. The defendant no. 1 who is son of Sh. Gulshan Kumar Jain, cannot stake a claim the property no. C - 32 as ancestral, as Sh. Gulshan Kumar Jain, their father was still alive at time of death of grandfather of defendant no. 1 and Deepak Jain.
67. Perusal of record shows that that Ex. PW6/X1 (Colly.) contains affidavit of Smt. Devki Devi which mentions date of death of Late Sh. Salig Ram Jain as 21/09/1964). Since death of grandfather of defendant no. 1 and Sh. Deepak Jain is after coming in force of Hindu CS DJ No. 204/24 Gulshan Kumar Jain & Ors. Vs. Rajeev Jain & Anr. Page No. 29 of 53 Succession Act,1956 the property in hands of Sh. Gulshan Kumar Jain will be separate property of Sh. Gulshan Kumar Jain. Exceptional circumstances to prove ancestral nature of property are not proved on record.
68. Their is no dispute with the proposition of law laid down in case titled as 'Rohit Chauhan Vs. Surender Singh & Ors.', decided by Hon'ble Supreme Court of India on 15/07/2013 by counsel for defendants to contend that coparcener from moment of his birth gets share in father's property. However for applicability of this case, the Joint Hindu Family properties must exist. In the facts of present case, the Joint Hindu Family properties has not been shown to have existed. Further death of Late Sh. Salig Ram Jain is of 21/09/1964 i.e. after commencement of Hindu Succession Act and thus, the cited judgment is distinguishable as Section 8 of Hindu Succession Axct 1956 will apply.
69. Their is no dispute with the proposition of law laid down in case titled as case titled as 'Shyam Narayan Prasad Vs. Krishna Prasad', decided by Hon'ble Supreme Court of India on 02/07/2018 to contend that that coparcener from moment of his birth gets share in father's property. However same is inapplicable to facts of present case as death of Late Sh. Salig Ram Jain is of 21/09/1964 i.e. after commencement of Hindu Succession Act and thus, the cited judgment is distinguishable as Section 8 of Hindu Succession Act 1956 will apply. Joint Hindu Family properties have not been shown to exist.
CS DJ No. 204/24 Gulshan Kumar Jain & Ors. Vs. Rajeev Jain & Anr. Page No. 30 of 53
70. Moreover in case titled as 'Uttam Vs. Saubhag Singh & Ors.', decided by Hon'ble Supreme Court of India on 2 March, 2016 it was held that :
"...20. Some other judgments were cited before us for the proposition that joint family property continues as such even with a sole surviving coparcener, and if a son is born to such coparcener thereafter, the joint family property continues as such, there being no hiatus merely by virtue of the fact there is a sole surviving coparcener. Dharma Shamrao Agalawe v. Pandurang Miragu Agalawe (1988) 2 SCC 126, Sheela Devi v. Lal Chand, (2006) 8 SCC 581, and Rohit Chauhan v. Surinder Singh (2013) 9 SCC 419, were cited for this purpose. None of these judgments would take the appellant any further in view of the fact that in none of them is there any consideration of the effect of Sections 4, 8 and 19 of the Hindu Succession Act......" (emphasis is by this Court).
FINDINGS ON SECOND ARGUMENT (THAT C - 32, MEERUT IS ANCESTRAL PROPERTY)
71. Submissions on behalf of defendant that vide joint affidavit Ex. PW6/7 (OSR), Sh. Deepak Kumar Jain and Sh. Rajeev Kumar Jain had stated that property bearing no. C - 32 is ancestral. No Objection was given that father of the deponents may dispose off the same. Vide affidavit Ex. PW6/6, Sh. Gulshan Kumar Jain had sold the property to Smt. Sushma Jain for Rs.1.6 lacs on 25/09/1993 from which funds suit CS DJ No. 204/24 Gulshan Kumar Jain & Ors. Vs. Rajeev Jain & Anr. Page No. 31 of 53 property was purchased so ancestral nature is proved are without merits. These submissions are rejected as:
72. Title in the movable property cannot pass by mere admission (reliance for this statement of law is placed upon case titled as 'Ambika Prasad Thakur Vs. Ram Ekbal Rai', (AIR 1966 SC 605)).
73. Mere mention in affidavit regarding ancestral nature is not sufficient in law to prove nature of property as ancestral. In Para No. 2 of Ex. PW6/7, it is mentioned that, "ancestral property is owned by our father Sh. Gulshan Kumar Jain" which shows property was separate property of father of parties.
FINDINGS ON CONTRIBUTION FINDINGS ON FIRST ARGUMENT
73. Submissions on behalf of defendants that out of funds from sale of ancestral property; properties no. B - 65 & B - 66 were purchased. Submissions that since contribution was also made by the plaintiffs, they are entitled to share in properties no. B - 65 & B - 66 are without merits. These submissions are rejected for reasons below:
74. Additionally further submissions on behalf of defendants that PW7 - Sh. Shubham Nautiyal has proved that Smt. Kiran Jain, who is wife of plaintiff no. 1 had taken loan of Rs.11,300/-. This amount was contributed towards purchase of suit properties. These submissions are CS DJ No. 204/24 Gulshan Kumar Jain & Ors. Vs. Rajeev Jain & Anr. Page No. 32 of 53 also without merits. These submissions are also rejected for reasons below :
75. Perusal of record shows that that PW7 - Sh. Shubham Nautiyal at best proved that loan of Rs.11,300/- was taken by Smt. Kiran Jain. Whether Sh. Gulshan Kumar Jain demanded contribution from Smt. Kiran Jain and whether Smt. Kiran Jain transferred the amount to Sh. Gulshan Kumar Jain on his asking is not proved.
FINDINGS ON SECOND ARGUMENT
76. Submissions on behalf of defendants further are that PW5 - Sh. Rakesh Kumar Bhatia has proved that Smt. Kiran Jain who is wife of plaintiff no. 1 had taken loan. Outstanding amount against loan is of Rs. 15,182/-. This amount was contributed towards purchase of suit properties. These submissions are without merits. These submissions are rejected as :
77. Perusal of record shows that PW5 - Sh. Rakesh Kumar Bhatia only brought the Membership form. He admitted in cross- examination that he had not checked about Mark 'A' in his office before bringing present record. Mark 'A' was not summoned. No other record except Ex. PW5/1 was available (same is stated by PW5 - Sh. Rakesh Kumar Bhatia in his examination-in-chief dated 15/03/2023). He had further admitted in his cross-examination that he cannot tell on what date loan was taken by Smt. Kiran Jain from the Society. Further even during CS DJ No. 204/24 Gulshan Kumar Jain & Ors. Vs. Rajeev Jain & Anr. Page No. 33 of 53 re-examination of PW5 - Sh. Rakesh Kumar Bhatia on 24/09/2025, only membership of Smt. Kiran Jain was proved. The loan amount and further as to when the loan was given was not proved.
FINDINGS ON THIRD ARGUMENT
78. Submissions on behalf of defendants that PW1 - Sh. Rajeev Jain has proved the photocopy of application form for membership dated 21/03/1949 in the name of Sh. Salig Ram Jain in Shri Jain Pursharthi Housing Cooperative Society Ltd., Thirthanker Mahavir Mark, Jain Nagar, Meerut City - 250002 as Mark 'A'. No objection regarding mode of proof was taken. This Mark 'A' document shows that Smt. Kiran Jain had taken loan of Rs.30,000/- from Oriental Bank of Commerce and hence contribution by Smt. Kiran stands proved, are without merits. These submissions are rejected as :
79. Perusal of record shows that PW5 Sh. Rakesh Kumar Bhatia could not prove that loan of Rs.30,000/- was given to Smt. Kiran Jain. Further, whether Sh. Gulshan Kumar Jain demanded contribution from Smt. Kiran Jain and whether Smt. Kiran Jain transferred the amount to Sh. Gulshan Kumar Jain is not proved.
80. Perusal of record shows that PW3 - Sh. Satyavir Singh, Deputy Manager, posted at PNB Head Office, PF and Pension Department, New Delhi in his cross-examination dated 15/03/2023 admitted that Rs.15,300/- were withdrawn by Smt. Kiran Jain on July, CS DJ No. 204/24 Gulshan Kumar Jain & Ors. Vs. Rajeev Jain & Anr. Page No. 34 of 53 1997. Same is not relevant for contribution regarding purchase of suit properties. As property B - 65 was purchased in 1996 and the B - 66 was purchased in 1995 (as averred in Para No. 10 of the plaint by the plaintiffs). Since withdrawal of Rs. 15,300/- in July, 1997 is after the suit properties were already purchased, it is not proved that withdrawal was for the purposes of contribution towards purchase of suit properties.
81. To sum up : defendants did not prove that property bearing no. B65 was purchased partly from the contribution of the sale of properties of ancestors and partly from the contribution of defendant no. 2.
FINDINGS ON ADDITIONAL SUBMISSIONS RAISED ON BEHALF OF PLAINTIFFS
82. According to Section 63 of the Indian Succession Act, 1925, a Will is required to be attested by at least two witnesses. According to Section 68 of the Evidence Act, a document required by law to be attested can be read into evidence only if at least one attesting witness thereof is examined to prove the same. Combined effect of both those provisions is that at least one attesting witness of the Will should have been examined to prove its execution.
83. Perusal of record shows that Smt. Usha Kanta Jain who was owner of flat bearing no. B - 65. She had made a Will which was registered on 29/01/2013 [Ex. DW1/3 (OSR)]. Same was duly proved CS DJ No. 204/24 Gulshan Kumar Jain & Ors. Vs. Rajeev Jain & Anr. Page No. 35 of 53 by DW3 - Sh. Puneet Jain. As per the Will, the property bearing no. B - 65 was bequeathed to her husband Sh. Gulshan Kumar Jain.
84. Submissions on behalf of defendant that DW3 - Sh. Puneet Jain is son of Smt. Jyoti Jain who is daughter of Late Smt. Usha Kanta Jain. He is an interested witness, so attestation is not proved is without merits. This submission is rejected as:
85. Perusal of record shows that Sh. Puneet Jain is not beneficiary of the Will and neither is his mother Smt. Jyoti. During cross-examination, the credibility of Sh. Puneet Jain was not demolished.
86. Further submission in written arguments filed on 24/01/2026 on behalf of defendants that other attesting witness was not examined so doubt is raised is rejected as:
87. According to Section 68 of the Evidence Act, a document required by law to be attested can be read into evidence only if at least one attesting witness thereof is examined to prove the same. Examination of one attesting witness who has duly proved attestation suffices in law.
88. Perusal of record shows that Late Sh. Gulshan Kumar Jain was owner of flat bearing no. B - 65 (by will of his wife) and also flat bearing no. B - 66 (as admitted in para 6 of plaint itself). He had made a Will which was registered on 08/02/2016 [Ex. DW1/4 (OSR)]. Same was duly proved by DW2 - Sh. Abhay Jain. As per the Will, the properties CS DJ No. 204/24 Gulshan Kumar Jain & Ors. Vs. Rajeev Jain & Anr. Page No. 36 of 53 bearing nos. B - 65 and B - 66 were bequeathed to his son Sh. Deepak Kumar Jain.
89. Submissions on behalf of defendant that DW2 - Sh. Abhay Kumar Jain is an interested witness as he had represented the firm M/s Dharam Chand Ladha Mal in a suit on behalf of his mother. In this suit, Sh. Deepak Jain had taken side of Sh. Abhay Kumar Jain, despite being a defendant and thus, it is clear that Sh. Abhay Kumar Jain is an interested witness, so attestation is not proved is without merits. These submissions are rejected as:
90. Perusal of record shows that Sh. Abhay Kumar Jain is not beneficiary under the Will. During cross-examination, the credibility of Sh. Abhay Kumar Jain was not demolished.
91. Further, as stated above examination of one attesting witness who has duly proved attestation suffices in law.
FINDINGS ON SUBMISSIONS RAISED ON BEHALF OF PLAINTIFF QUA DEFENDANT'S EVIDENCE(PLAINTIFFS EVIDENCE IN CONNECTED MAIN CASE) PW1 - SH. RAJEEV KUMAR JAIN
92. Perusal of record shows that PW1 - Sh. Rajeev Kumar Jain is not a reliable witness as:
93. Perusal of record shows that in his cross-examination dated 10/08/2023, PW1 admitted that Sh. Gulshan Kumar Jain was working as CS DJ No. 204/24 Gulshan Kumar Jain & Ors. Vs. Rajeev Jain & Anr. Page No. 37 of 53 Manager, SBI. Smt. Kiran Jain, Wife of PW1 was a clerk. since Sh. Gulshan Kumar Jain was thus in a good position, he was financially better off. Thus the case set up that he sought for loan/funds from Sh. Rajeev Kumar Jain and Kiran Jain is improbable and not in consonance with ordinary human affairs.
94. Further in cross-examination dated 10/08/2023, PW1 stated that no specific money was asked. The exact month of alleged family settlement was not stated.
95. Further cross-examination dated 07/10/2023 shows that Sh. Gulshan Kumar Jain was paying the rent of property B - 66, where the family was staying at the relevant period. This shows that Sh. Gulshan Kumar Jain was financially sound as PW1 could not even tell as to what was the rent.
96. Further in cross-examination dated 02/12/2023, Sh. Rajeev Kumar Jain - PW1 stated that there was gradual change of behavior of his father towards him. It is further admitted that no HUF existed in the name of her family having my father as Karta to the best of my knowledge. It is further admitted that the ownership documents of properties no. B - 65 & B - 66 were not challenged in any Court of law.
PW2 - SMT. KIRAN JAIN
97. Perusal of record shows that in her cross-examination dated 10/08/2023, PW2 - Smt. Kiran Jain has taken a contrary stand that she CS DJ No. 204/24 Gulshan Kumar Jain & Ors. Vs. Rajeev Jain & Anr. Page No. 38 of 53 had personally paid contribution. Direct demand was made to her by Sh. Gulshan Kumar Jain. (This is contrary to stand of PW1 Sh. Rajeev Kumar Jain in his cross-examination dated 07/10/2023, wherein he had stated that his wife had lent him money from her personal savings. This money was given to his father by him).
98. Further, PW2 - Smt. Kiran Jain in her cross-examination dated 10/08/2023 stated that oral family settlement of the year 1995 was in presence of her father-in-law, mother-in-law and her husband. Same is contrary from stand of PW1 - Sh. Rajeev Kumar Jain, who had stated in his cross-examination dated 10/08/2023 that the family settlement had taken place in his presence, presence of his brother - Sh. Deepak Jain and our parents.
99. Further, PW2 - Smt. Kiran Jain admitted that there is no record pertaining to year 1995 and 1996 in judicial file qua her Bank salary. The capacity to give loan at the relevant time of purchase of B - 65 and B - 66 i.e. in year 1996 and 1995 respectively is not proved.
100. Submissions on behalf of defendant that the transaction regarding demand and supply of funds by Smt. Kiran Jain pertains to the year, 1995. Smt. Kiran Jain - PW2 was cross-examined on 10/08/2023 i.e. after approximately 28 years and thus, slight discrepancies regarding presence of persons during family settlement and whether demand for money was made directly to PW2 - Smt. Kiran Jain or not? are bound to CS DJ No. 204/24 Gulshan Kumar Jain & Ors. Vs. Rajeev Jain & Anr. Page No. 39 of 53 occur due to human memory, so PW-2 be considered credible are without merits. These submissions are rejected as:
101. Requirement of funds by Gulshan Kumar Jain is not proved. He was paying rent. PW1- Sh. Rajeev Kumar Jain and his wife Kiran were living with him. PW1- Sh. Rajeev Kumar Jain could not tell about rate of rent. Financial capacity of Sh Gulshan is thus proved. Evidence of PW1- Sh. Rajeev Kumar Jain and PW2 - Smt. Kiran Jain is not in consonance with natural human conduct in ordinary circumstances.
102. To sum up : ancestral nature of suit property is not established. PW1- Sh. Rajeev Kumar Jain and PW2 - Smt. Kiran Jain are not reliable.
103. It is not proved that property bearing no. B-66, Ahinsa Vihar is an ancestral property.
EASEMENT ACT,1882
104. Section 60 of Easement Act,1882 provides that a license may be revoked by the guarantor, unless -- (a) it is coupled with a transfer of property and such transfer is in force; (b) the licensee, acting upon the license, has executed a work of a permanent character and incurred expenses in the execution. In facts of present case the two mentioned exceptions are not even pleaded by defendants. Plaintiff has validly terminated license of defendants vide legal Notice dated CS DJ No. 204/24 Gulshan Kumar Jain & Ors. Vs. Rajeev Jain & Anr. Page No. 40 of 53 01/02/2014. Termination can be express or implied as per Section 61 of Easement Act,1882.
105. Plaintiff is entitled Mandatory Injunction by way of directing the defendant to vacate the portion of the suit property bearing No. B-66, Plot No. 27/1, First Floor, Sector - 9, Ahinsa Vihar, Rohini, New Delhi - 110085 which is in occupation of the defendants.
106. Submissions that the Site Plan has not been proved as per law and thus, the suit be dismissed are without merits. Site plan has not been disputed. No counter site plan has been proved.
107. Possession as per Site Plan at Page No. 21 of the plaintiff's documents is claimed. same is not denied in reply to Para No. 1 of the plaint in the Written Statement.
108. Relief of decree for Mandatory Injunction in favour of the plaintiff against the defendants thereby directing the defendants to remove themselves with their belongings from the suit property and handover the vacant peaceful possession of the portion of property bearing Flat B - 66, Plot No. 27/1, First Floor, Sector - 9, Ahinsa Vihar, Rohini, New Delhi - 110085 to the plaintiff as shown red in site plan at page 21 of plaintiffs documents is made out.
109. Issue no. 1 is decided in favour of plaintiff.
CS DJ No. 204/24 Gulshan Kumar Jain & Ors. Vs. Rajeev Jain & Anr. Page No. 41 of 53 Issue No. 2 is :
"Whether the plaintiff is entitled to Damages @ Rs.20,000/- per month, pendente-lite and till handing over the vacant possession of suit property by the defendants to plaintiff? OPP"
110. Ld. Counsel for the plaintiff has argued on this issue that vide order dated 24/07/2024, rent @ Rs.16,500/- per month was directed. Judicial notice may be taken and appropriate rent may kindly be determined and damages be awarded to the plaintiff.
111. Per contra, Ld. Counsel for the defendant has argued on this issue that even the defendant has not led any evidence to show the current rent of suit property. However, onus was upon the plaintiff and in absence of discharge of the same, this issue be decided against the plaintiff.
FINDING OF THE COURT ON ISSUE NO. 2112. Perusal of record shows that vide order dated 24/07/2024, rent @ Rs.16,500/- per month was directed.
113. It is rightly submitted on behalf of defendant that even the defendant has not led any evidence to show the current rent of suit property. Onus was upon the plaintiff.
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114. However even in absence of discharge of onus by plaintiff, this court keeping in view the locality, potentiality, nature of suit premises and close relation ship between the parties deems is just to quantify mesne profits on a conservative lower side.
115. In case titled as 'Bijay Kumar Manish Kumar HUF Versus Ashwin Bhanulal Desai', reported in 2024 SCC OnLine SC 980 it was held by Hon'ble Supreme Court that a tenant who once entered the property in question lawfully, continues in possession after his right to do so stands extinguished, is liable to compensate the landlord for such time period after the right of occupancy expires. In present case permissive possession stood terminated. Defendants ought to have vacated possession immediately on termination of their license. Same was not done. Plaintiff is thus entitled to mesne profits.
116. In case titled as 'M. C. Agarwal HUF Vs. M/s. Sahara India and Ors.', reported in 183 (2011) DLT 105 it was held that courts can take judicial notice of increase of rent and depending on the locality.
117. It is not disputed that defendants are in part possession of suit property. Keeping in view the locality, potentiality, nature of suit premises and close relation ship between the parties mesne profits @ Rs.14,500/- per month pendente-lite and till handing over the vacant possession of suit property by the defendants to plaintiff would serve the ends of justice.
CS DJ No. 204/24 Gulshan Kumar Jain & Ors. Vs. Rajeev Jain & Anr. Page No. 43 of 53 Issue No. 3 is :
"Whether the plaintiff is entitled to costs ? OPP"
118. Ld. Counsel for the plaintiff has argued on this issue that general rule is that cost follow the event. The same be followed.
119. Per contra, Ld. Counsel for the defendant has argued on this issue that costs be imposed upon plaintiff for filing false suit.
FINDING OF THE COURT ON ISSUE NO. 3120. In view of provisions of Section 35 of C.P.C. as a general rule, costs shall follow the event. Since suit is decided in favour of plaintiff, the plaintiff is entitled to costs.
Issue No. 4 is :
"Whether the suit is not property valued for the purposes of pecuniary jurisdiction and court fees ? OPD"
121. Ld. Counsel for the defendant has argued on this issue that as per Section 7 (v) of the Court Fees Act, 1970, in suit for possession of land, houses, the Court fees is to be paid as per value of the subject matter. The same has not been done and thus, the present issue be decided in favour of defendants.
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122. Per contra, Ld. Counsel for the plaintiff has argued on this issue that in Para No. 14 of the plaint for relief of mandatory injunction, suit was valued at Rs.130/- and Court fees of Rs.13/- was paid. The case was instituted before Ld. Civil Judge, Rohini and vide order dated 01/03/2024, the same was transferred to this Court. As admittedly, two cases between the same parties were pending, the same were clubbed for disposal together to avoid conflicting judgments.
FINDING OF THE COURT ON ISSUE NO. 4LEGAL POSITION
123. In case titled as 'Bharat Bhushan Gupta v. Pratap Narain Verma', reported as (2022) 8 SCC 333 : (2022) 4 SCC (Civ) 315 : 2022 SCC OnLine SC 751 at page 344 it was held as follows:
24. It remains trite that it is the nature of relief claimed in the plaint which is decisive of the question of suit valuation. As a necessary corollary, the market value does not become decisive of suit valuation merely because an immovable property is the subject-matter of litigation. The market value of the immovable property involved in the litigation might have its relevance depending on the nature of relief claimed but, ultimately, the valuation of any particular suit has to be decided primarily with reference to the relief/reliefs claimed.
APPLYING THE ABOVE STATEMENT OF LAW TO SUBMISSIONS RAISED CS DJ No. 204/24 Gulshan Kumar Jain & Ors. Vs. Rajeev Jain & Anr. Page No. 45 of 53
124. Submissions on behalf of defendant that as per Section 7
(v) of the Court Fees Act, 1970, in suit for possession of land, houses, the Court fees is to be paid as per value of the subject matter. Submissions that the same has not been done and thus, the present issue be decided in favour of defendants is without merits. These submissions are rejected as :
125. Perusal of record shows that in Para No. 14 of the plaint for relief of mandatory injunction, suit was valued at Rs. 130/- and Court fees of Rs.13/- was paid. The case was instituted before Ld. Civil Judge, Rohini and vide order dated 01/03/2024, the same was transferred to this Court. As admittedly, two cases between the same parties were pending, the same were clubbed for disposal together to avoid conflicting judgments.
126. In view of law laid own in case titled as 'Bharat Bhushan Gupta Vs. Pratap Narain Verma', reported as (2022) 8 SCC 333 court fees is proper as father is seeking possession from son and daughter in law who were permissive users/licensees. Possession in law is deemed to be of licensor. Thus prayer for mandatory injunction is justified.
127. Suit is property valued for the purposes of pecuniary jurisdiction and court fees
128. Issue no. 4 is decided against defendant.
CS DJ No. 204/24 Gulshan Kumar Jain & Ors. Vs. Rajeev Jain & Anr. Page No. 46 of 53 Issue No. 5 is :
"Whether the suit property was purchased after selling ancestral property in Meerut, UP and thus, the defendant no. 1 has a share in the same as owner to the extent of 1/3rd share ? OPD"
129. Ld. Counsel for the parties adopted their submissions on issue no. 1.
FINDING OF THE COURT ON ISSUE NO. 5130. In view of findings on issue no 1,it is not proved that suit property was purchased after selling ancestral property in Meerut, UP.
131. Defendant no. 1 has no share in the suit properties as owner to the extent of 1/3rd share.
132. Issue no. 5 is decided against defendant.
Issue No. 6 is "Whether the defendants have contributed money for purchase of the suit property ? OPD"
133. Ld. Counsel for the parties adopted their submissions on issue no. 1.
CS DJ No. 204/24 Gulshan Kumar Jain & Ors. Vs. Rajeev Jain & Anr. Page No. 47 of 53 FINDING OF THE COURT ON ISSUE NO. 6
134. In view of findings on issue no 1,it is not proved that defendants have contributed money for purchase of the suit property.
135. Issue no. 6 is decided against defendant.
Issue No. 7 is "Whether the defendant No. 1 is owner of suit property by virtue of an oral family Partition ? OPD"
136. Ld. Counsel for the defendant has argued on this issue that Oral Family Partition had taken place. In the Legal Notice, date of 2006 is mentioned as date of Family Arrangement. PW1 - Sh. Rajeev Kumar Jain in examination-in-chief affidavit in Para No. 24 has specifically averred about the oral family partition. No written family partition was executed as the matter was between close family members.
137. Per contra, Ld. Counsel for the plaintiff has argued on this issue that submissions on issue no 1 being overlapping are being adopted FINDING OF THE COURT ON ISSUE NO. 7
138. PW2 in her cross-examination dated 10/08/2023 stated that oral family settlement of the year 1995 was in presence of her father-in- law, mother-in-law and her husband. Same is contrary from stand of CS DJ No. 204/24 Gulshan Kumar Jain & Ors. Vs. Rajeev Jain & Anr. Page No. 48 of 53 PW1, who had stated in his cross-examination dated 10/08/2023 that the family settlement had taken place in his presence and presence of his brother - Sh. Deepak Jain and our parents. In reply to legal notice (dated 18/02/14) date of 2006 is averred as oral settlement date contrary to stand of PW2 in her cross-examination dated 10/08/2023 that oral family settlement was in the year 1995.
139. Further in cross-examination dated 10/08/2023, PW1 Sh. Rajeev Kumar Jain stated that no specific money was asked. The exact month of alleged family settlement was not stated.
140. No date of alleged oral family partition is pleaded in written statement. Only in reply to legal notice (dated 18/02/14) date of 2006 is averred. Alleged oral family partition is not accompanied by any mutation and the same is not proved.
141. Further in view of findings on issue no 1 case of defendants(plaintiffs in main case) was found to be not credible.
142. The defendant No. 1 is not owner of suit property by virtue of an oral family Partition
143. Issue no. 7 is proved against the defendants.
Issue No. 8 is :
"Whether the suit of the plaintiff is barred by law of Limitation ? OPD"
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144. Ld. Counsel for the defendant has argued on this issue that defendant is in possession pursuant to oral Family Settlement since, 1995 and the suit filed in 2015 is barred by limitation under Article 65 of the Limitation Act, 1963.
145. Per contra, Ld. Counsel for the plaintiff has argued on this issue that Legal Notice dated 01/02/2014 was given terminating the licence. Suit for mandatory injunction was filed on 13/01/2015 which is within limitation. (Reliance is placed upon Article 113 of the Limitation Act, 1963).
FINDING OF THE COURT ON ISSUE NO. 8146. Submissions on behalf of defendant that defendant is in possession pursuant to oral Family Settlement since, 1995 and the suit filed in 2015 is barred by limitation under Article 65 of the Limitation Act, 1963, are without merits as;
147. Perusal of record shows that Legal Notice dated 01/02/2014 was given terminating the license. Suit for mandatory injunction was filed on 13/01/2015 which is within limitation. (Reliance is rightly placed upon Article 113 of the Limitation Act, 1963 on behalf of plaintiff which applies to present suit).
148. Issue no. 8 is decided against defendants.
CS DJ No. 204/24 Gulshan Kumar Jain & Ors. Vs. Rajeev Jain & Anr. Page No. 50 of 53 Issue No. 9 is :
"Whether the suit property is matrimonial home of defendant no. 2 and if so, its effect ? OPD"
149. Ld. Counsel for the defendant has argued on this issue that admittedly Smt. Kiran is residing in property in question since the date of hear marriage and being matrimonial home, she cannot be evicted on the plea that she is licencee.
150. Per contra, Ld. Counsel for the plaintiff has argued on this issue that defendant no. 2 was mere licencee. Licence stands terminated by Legal Notice dated 11/02/2014. The relief qua matrimonial home may be directed against her husband. Plaintiff is not concerned with the same.
FINDING OF THE COURT ON ISSUE NO. 9151. Submissions on behalf of defendants that admittedly Smt. Kiran is residing in property in question since the date of her marriage and being matrimonial home, she cannot be evicted on the plea that she is licencee are without merits. These submissions are rejected as:-
152. In present case it is not shown by defendants that proceedings under the protection of women from domestic violence act, 2005, are pending.
153. It is not shown that order u/s 19 of the protection of women from domestic violence act, 2005, has been passed.
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154. Defendant no. 1 and 2 in present case have a cordial relationship interse. Joint written statement was filed by them. In the present case there are no allegations of domestic violence so no relief can be granted to second defendant (reliance is placed upon case titled as 'Arti Sharma & Anr. Vs. Ganga Saran', decided by Hon'ble High Court of Delhi on 24/08/2021).
155. The provisions of the Domestic Violence Act cannot be used as a ploy by the son-first defendant. First defendant cannot claim a right in his father's property or continue to retain possession of the father's property, on the strength of his wife's right of residence. A civil dispute relating to ownership of property cannot be converted, into a case under the Domestic Violence Act. Same amounts to be an abuse of the beneficial provisions of the Domestic Violence Act, by stretching it over and beyond its purpose and ambit.
156. Second defendant may pursue relief qua matrimonial home in appropriate proceedings against appropriate person as per law.
157. Further defendant no. 2 was a mere licencee. Licence stands terminated by Legal Notice dated 11/02/2014.
158. Issue no. 9 is decided against defendants.
CS DJ No. 204/24 Gulshan Kumar Jain & Ors. Vs. Rajeev Jain & Anr. Page No. 52 of 53 RELIEF
159. In view of the findings on issues above, the suit of the plaintiff is decreed with costs. Plaintiff is entitled to :
(i) A decree for Mandatory Injunction in favour of the plaintiff against the defendants thereby directing the defendants to remove themselves with their belongings from the suit property and handover the vacant peaceful possession of the portion of property bearing Flat B - 66, Plot No. 27/1, First Floor, Sector - 9, Ahinsa Vihar, Rohini, New Delhi - 110085 to the plaintiff as shown red in site plan at page 21 of plaintiffs documents.
(ii) And a decree for further occupation charges/damages @ Rs.14,500/- per month pendente-lite and till the handing over the peaceful, vacant, physical possession of the suit property by the defendants to the plaintiff.
(iii) Nazir is directed to release F.D. deposited by defendants pursuant to order dated 24/07/2024 and 05/01/2026 to plaintiff as per law.
160. Decree sheet be prepared accordingly. File be consigned to Digitally signed Record-Room. VIKRAM BALI by VIKRAM BALI Date:
2026.01.29 16:01:20 +0530 Announced in the open Court today (Vikram Bali) on 29th January, 2026 District Judge-02, North, Rohini Court Complex, Rohini, Delhi CS DJ No. 204/24 Gulshan Kumar Jain & Ors. Vs. Rajeev Jain & Anr. Page No. 53 of 53