Final Order 4

Order Details: COPY OF JUDGMENT
Pdf Text: IN THE COURT OF AASHISH GUPTA, DISTRICT JUDGE-01,
NORTH-EAST DISTRICT, KARKARDOOMA COURTS, DELHI
In the matter of
RCA DJ No. 36/26
CNR No. DLNE01-001259-2026
Kamal
S/o Late Rich Pal Singh
R/o H. No. A-149,
New Seelampur,
Delhi-110053. ….. Appellant
versus
1. Birju
S/o Late Jagdish
R/o H. No. A-149,
1st Floor, New Seelampur,
Delhi-110053.
2. Mukesh
S/o Late Jagdish
R/o H. No. A-149, 2nd Floor,
New Seelampur,
Delhi-110053. ….. Respondent
Date of institution : 16.04.2026
Reserved on : 16.05.2026
Date of Decision : 01.06.2026
JUDGMENT
1. The present first appeal impugns the judgment and decree dated
10.03.2026 passed in CS no. 390/23 (hereinafter referred to as the
RCA DJ 36/26 Kamal vs. Birju & anr. 1 of 12
-- 1 of 12 --
‘impugned judgment’) whereby the Ld. Trial Court has dismissed the
suit of the appellant/plaintiff.
2. For the sake of convenience, parties shall be referred to by the
nomenclature used in the Ld. Trial Court.
3. Plaintiff had premised his case on the basis of licensee-licensor
relationship claiming that the suit property described in schedule
hereinafter was allowed to be used on license basis to the defendants.
Schedule of Property
1st Floor & 2nd Floor of property bearing no.
A-149, New Seelampur, Delhi-110053, measuring
80 square yards with D-1 occupying the first floor
and D-2 occupying the second floor of the said
property (more specifically shown in red colour in
the site plan Ex.PW1/9)
4. Plaintiff is the uncle of the defendants and as per his case, despite
termination of the license, the suit property was not vacated and
hence he sought a decree of mandatory injunction against defendants
seeking a direction to them to vacate the suit property.
5. It is pertinent to note that plaintiff does not specify as to when was
the said license given to the defendants. He simply claims in the
plaint that defendants were asked to vacate the property on
25.07.2023 and 05.08.2023.
6. Additionally, plaintiff has also sought a decree of permanent
injunction restraining the defendants from creating any third party
RCA DJ 36/26 Kamal vs. Birju & anr. 2 of 12
-- 2 of 12 --
interest. He had also sought a decree of damages claiming
Rs.10,000/- per month from defendants.
7. It is also pertinent to note that as per plaintiff’s case, his father
Richpal was the original owner of the above described property and
eventually he executed GPA, agreement to gift, Will and possession
letter dated 05.05.2014 in favour of plaintiff (hereinafter referred as
‘set-1’). They were given Ex.PW1/1 (OSR) to Ex.PW1/4 (OSR)
during trial. On the basis of the said documents, plaintiff claims that
he is the absolute owner of the entire property.
8. Now, defendants are children of one Jagdish (since deceased and one
of the brothers of plaintiff). They admit the fact that Richpal (father
of plaintiff and grand-father of the defendants) was the original
owner of the property in question. It is their case that during the
lifetime of Richpal (Richpal admittedly died on 24.12.2019),
sometime in 2005 an oral partition took place between the parties and
in pursuance thereto about 40 square yards of area (out of the total
area of 80 square yards) was given to the defendants.
9. They also claim that Richpal had executed some unregistered GPA,
agreement to gift, Will and possession letter in favour of D-1 on
10.07.2009 (hereinafter referred as ‘set-2’). These documents were
retained in original before the trial court and were given Ex.DW1/3
(colly.).
10. Thus, as per the defendants, on the basis of oral partition of 2005
read with the documents dated 10.07.2009, they do not occupy the
RCA DJ 36/26 Kamal vs. Birju & anr. 3 of 12
-- 3 of 12 --
suit property as a licensee of the plaintiff. As per them, they are
holding the suit property as their share in the property of Richpal.
11. It is pertinent to note that as per the answering defendants, the
property at the site measures about 120 square yards and different
children of Richpal (who admittedly had six sons and two daughters)
are occupying different portions in the said 120 square yards. As per
them, the site plan of the plaintiff Ex.PW1/9 is not the correct site
plan. They rely upon a separate site plan Ex.DW1/1.
12. Thus, on one hand, plaintiff claims that defendants are his licensees,
on the other hand, defendants claim that they are occupying the
property as a share-holder being legal heir of Richpal. At the same
time, it is pertinent to note that while plaintiff relies upon set-1
described above, defendants rely upon set-2.
13. Now, the Ld. Trial Court, based on evidence, have dismissed the suit
of the plaintiff
inter alia holding (a) that plaintiff has failed to
establish the relationship of licensor-licensee with defendants at any
point of time; (b) that plaintiff cannot be allowed to get possession of
the suit property on the basis of unregistered documents i.e. set-1.
Arguments of parties :
14. Counsel for plaintiff argued that the Ld. Trial Court did not
appreciate the evidence of the plaintiff’s witnesses in the correct
perspective. As per plaintiff, the documents forming part of set-1
Ex.PW1/1 (OSR) to Ex.PW1/4 (OSR) were duly proved on record
RCA DJ 36/26 Kamal vs. Birju & anr. 4 of 12
-- 4 of 12 --
through the testimony of PW-1 to PW-3 (namely Kamal/plaintiff
himself, Madan/PW2 and Raju/PW3). PW2 and PW3 are the
brothers of Kamal. Thus, PW1 to PW3 are all uncles of the
defendants and it was submitted on behalf of plaintiff that the
testimony of the aforesaid witnesses was sufficient to prove the
execution of set-1. It was argued that once it is shown that Richpal
was the original owner of the entire property (of which suit property
is a part) and execution of set-1 is proved, plaintiff would step in the
shoes of Richpal. It was argued that this shall mean that plaintiff
became the owner of the property and can then ask the defendants to
leave the property.
15. It was submitted that the Ld. Trial Court has held that it was Richpal
who actually allowed the defendants to occupy the property. If the
said fact is taken as correct, it shall mean that defendants were
licensees of Richpal. As per plaintiff, once plaintiff stepped in the
shoes of Richpal, he essentially became the licensor (substituting
Richpal) and in that capacity, he can ask the defendants to leave the
property.
16. It was also argued that the Ld. Trial Court has held that plaintiff does
not have any title to the property. This was not even the case of
plaintiff and therefore, the finding of the trial court on this count is
liable to be set aside.
17. On the other hand, counsel for defendants submitted that there is no
infirmity in the impugned judgment. As per the defendants, Richpal
was the admitted owner of the suit property. Once he died in 2019,
RCA DJ 36/26 Kamal vs. Birju & anr. 5 of 12
-- 5 of 12 --
the defendants would have a share in the property and therefore, they
could not have been asked to vacate the property.
18. It was further argued that the findings returned by the Ld. Trial Court
clearly shows that plaintiff failed to prove that it was he who
inducted the defendants as licensees. It was argued that it was for the
plaintiff to prove on record that they are licensees in the property.
Once the same is not proved, defendants cannot be evicted from the
property.
19. Additionally, it was submitted that from the bare perusal of the cross-
examination of PW1/plaintiff, it is evident that the suit property is
constructed by different children of Richpal in different portions.
This, as per defendants, show that there was some partition between
the parties and this would disprove the case of the plaintiff.
Analysis & Findings:
20. I have given thoughtful consideration to the rival arguments of the
parties and have gone through the entire trial as well as appeal
record.
21. In my humble opinion, the present appeal is liable to fail.
22. The only issue which arises in the present appeal is whether the
plaintiff was able to establish licensor-licensee relationship between
the parties or not.
RCA DJ 36/26 Kamal vs. Birju & anr. 6 of 12
-- 6 of 12 --
23. In my humble opinion, the said relationship was never
established. I may note that plaintiff did not sue the defendants on
the basis of title and therefore, he cannot maintain his relief of
possession (couched as mandatory injunction) on the basis of his
purported title documents Ex.PW1/1 (OSR) to Ex.PW1/4 (OSR).
Even if the suit was premised on the basis of title, it was liable to
fail as the above documents are unregistered GPA, agreement for
gift, Will and possession letter only. It is settled law that such
documents are not documents of conveyance and therefore, they
cannot give any right, title or interest to the plaintiff qua the
property covered under them.
24. I may hasten to add that the Will Ex.PW1/3 could have conveyed
the title of the property in question to plaintiff only if the same is
proved in compliance of Section of 63 of Indian Succession Act,
1925 read with Section 68 of Indian Evidence Act, 1872. None of
the attesting witnesses to the said Will were summoned by the
plaintiff and thus, the said Will was never proved.
25. Thus, the Ld. Trial Court was correct in holding that plaintiff
cannot be allowed to get possession of the property on the basis of
unregistered documents forming part of set-1.
26. I may note that the argument that the case was never premised on
title documents by the plaintiff and therefore, the said finding is
incorrect is liable to fail. This is because, plaintiff himself claims
in the plaint that on the basis of set-1, he is the absolute owner of
the suit property and goes on to lead the said documents in
RCA DJ 36/26 Kamal vs. Birju & anr. 7 of 12
-- 7 of 12 --
evidence. It was in view of the above that the Ld. Trial Court
noted the nature of the documents and held that the same cannot
be used by the plaintiff to get possession.
27. Now, even if the above finding of the Ld. Trial Court is over-
looked and the case is considered only on the aspect as to whether
plaintiff was successful in establishing licensor-licensee
relationship
interse the parties, the answer has to be in the
negative.
28. It may be recalled that plaintiff does not specify the time when he
inducted the defendants as his licensees. It was his specific case
that defendants are his licensees (see para 5 of the plaint wherein
it is specifically pleaded by the plaintiff that on account of love
and affection, the defendants were allowed to occupy the
scheduled property).
29. Admittedly, Richpal was the actual owner of the suit property.
Plaintiff never pleaded a case that it was Richpal who actually
allowed the defendants to stay in the property. Thus, it was not the
case of the plaintiff that Richpal was the actual licensor who
allowed the defendants to occupy the property and eventually,
when plaintiff purportedly purchased the property on the basis of
set-1 from Richpal, he became the licensor of the defendants.
30. The argument made before this court of plaintiff stepping in the
shoes of Richpal is thus,
de hors the record. The said case was
RCA DJ 36/26 Kamal vs. Birju & anr. 8 of 12
-- 8 of 12 --
never pleaded before the trial court and therefore, the said
argument cannot be raised today.
31. The Ld. Trial Court has correctly appreciated the evidence on
record and has observed that during the cross-examination of
various defence witnesses (particularly DW4/Santosh Devi and
DW6/Vinod Kumar), plaintiff himself have put a question to the
said defence witnesses suggesting that Richpal had actually
allowed the defendants to occupy the suit property.
32. The relevant portions of said cross-examinations read as under:
Cross-examination of DW-4/Santosh Devi
“……..It is correct that the suit property was given to the defendants
by the grandfather to reside and since then they have been living in
the suit property…..”
Cross-examination of DW-6/Vinod Kumar
“…….It is correct that Sh. Richpal, father of Sh. Jagdish, asked Birju
and Mukesh to reside at the property bearing no. A-149, A Block,
New Seelampur……
……. Sh. Richpal asked Mukesh and his family to reside in suit
property long back but I do not remember the exact month and
year…..”
(emphasis supplied)
33. A bare perusal of the above cross-examinations would show that
plaintiff himself suggested to the above defence witnesses that it
was Richpal who permitted the defendants to reside in the suit
property. This is in contradiction to the case of the plaintiff
whereby he claim that it was he who had given license to the
defendants.
RCA DJ 36/26 Kamal vs. Birju & anr. 9 of 12
-- 9 of 12 --
34. It may be recalled that plaintiff never pleaded or proved the time
when he allowed the defendants as licensees in the suit property.
Now, it has come in the cross-examination of the defence
witnesses that it was Richpal who allowed the defendants to enter
the property.
35. This means that when the defendants entered the property, they
were licensees of Richpal. As already noted, the documents of
title relied upon by the plaintiff i.e. set-1 cannot given him any
right, title or interest in the suit property. This means that even on
05.05.2014 or thereafter till the death of Richpal on 24.12.2019,
defendants were licensees of Richpal only.
36. I may note that the documents relied upon by the defendants i.e.
set-2 are also unregistered GPA etc and they themselves cannot
give any title to the defendants (especially D-1 in whose name the
said documents were purportedly executed by Richpal). Thus, till
the death of Richpal on 24.12.2019, defendants were only
licensees of Richpal.
37. When Richpal died, the property would then devolve upon his
heirs as per law of succession. It may be noted that defendants are
children of Jagdish (one of the sons of Richpal). Thus, possibly
the defendants succeeded to a share in the property. This is
presuming that Richpal had died
intestate.
38. Be that as it may, in my humble opinion, the case set up by the
plaintiff that defendants are his licensees is not proved on record
RCA DJ 36/26 Kamal vs. Birju & anr. 10 of 12
-- 10 of 12 --
from his evidence. His oral plea that he allowed the defendants to
occupy the suit property out of love and affection is without any
specific date when he gave the said permission. His argument
before this court that he stepped in the shoes of Richpal shows
that, by necessary inference, he admits that he actually did not
gave license to the defendants and it was Richpal who allowed the
defendants to occupy the property. He never set up the said case
before the trial court. His documents i.e. set-1 cannot give him
any right, title or interest in the suit property and thus, he cannot
claim that he has stepped into the shoes of his father/Richpal.
39. From the record, possibly defendants have come to hold a share in
the property and they cannot be treated to be mere licensees.
40. Thus, in my humble opinion, the Ld. Trial Court has correctly
come to the conclusion that plaintiff failed to establish licensor-
licensee relationship between the parties and was thus, right in
dismissing the suit of the plaintiff. The relief of permanent
injunction and damages was consequential to the proof of the
above relationship. Once the same was not proved, the suit was
liable to fail
in toto.
41. The argument of the counsel for the plaintiff that the testimony of
PW2 and PW3 was over-looked by the trial court is incorrect. It is
pertinent to note that in the plaint, plaintiff never claimed that he
gave the license of the suit property in the presence of his brothers
Madan/PW2 or Raju/PW3. Thus, plaintiff could not have
examined or placed reliance on the testimony of the said two
RCA DJ 36/26 Kamal vs. Birju & anr. 11 of 12
-- 11 of 12 --
witnesses to prove his purported license. Again, the said two
witnesses are not witnesses to set-1. It is not pleaded in the plaint
that they had witnessed the execution of said documents in favour
of plaintiff. In fact, they claim in their respective affidavits of
evidence Ex.PW2/A and Ex.PW3/A that they identified the
signatures of their father at point A on set-1. But, admittedly,
Richpal was an illiterate person and as per set-1, he only placed
his thumb impressions on set-1. If that be true, which signatures
of Richpal/father of PW2 and PW3 were identified by the said
witnesses is anybody’s guess.
42. Thus, the Ld. Trial Court committed no infirmity by not placing
any reliance on the testimony of PW2/Madan and PW3/Raju. The
testimony of the said two witnesses was beyond pleadings of the
plaintiff and was rightly over-looked by the Ld. Trial Court.
43. Considering the above, there is no infirmity or illegality in the
impugned judgment and decree dated 10.03.2026. Accordingly,
the present appeal is dismissed
.
44. Let a decree-sheet be prepared accordingly.
45. Let copy of the judgment passed in appeal along with decree-
sheet be sent to Ld. Trial Court.
Announced in the Aashish Gupta
open Court on 01.06.2026 District Judge-01, North-East District,
Karkardooma Courts, Delhi
RCA DJ 36/26 Kamal vs. Birju & anr. 12 of 12
-- 12 of 12 --