SANDEEP SETHI & ANR v. RAJINDER KUMAR SETHI DECEASED THROUGH LRS

Judgment

#1. Through the present Appeals, the Appellants [Defendants before the learned Single Judge] in RFA (OS) No. 05/2017 and in RFA (OS) No. 10/2017, and the Appellant [Plaintiff before the learned Single Judge] in RFA (OS) No. 06/2017, assail the correctness of the common judgement dated 28.11.2016 [hereinafter referred to as „Impugned Judgement‟] passed by learned Single Judge [hereinafter referred to as „LSJ‟] in CS(OS) 2134/2006 & CC No. 990/2017, wherein the Plaintiff‟s suit was decreed against the Defendants in the said suit, directing the Defendants to handover the possession of the entire first floor and two rooms along with one bathroom on the second floor of the Property bearing No. A-8, Vishal Enclave, New Delhi [hereinafter referred to as „Suit Property‟], as shown in the site plan, within two months of receipt of this order. The Counter Claim filed by the Defendant stood dismissed in view of the Impugned Judgement passed in the suit. Signature Not Verified Signed By:SAVITA PASRICHA Signing Date:09.01.2026 16:51:13 RFA (OS) 05/2017 and connected matters Page 2 of 43

#2. Since the parties to the disputes are common, as is the Impugned Judgement, and the appeals arise out of an identical factual matrix involving overlapping parties and common questions of law, this Court deems it appropriate to dispose of all the appeals by way of a common judgement. The discussions, however, shall be bifurcated, wherever necessary, while referring to the parties in the same manner.

#3. Nevertheless, for the ease of reference and with the consent of the parties, RFA (OS) No.5/2017 is considered as a lead case. For the sake of convenience, the parties before this court shall be referred to in accordance with their respective status before the LSJ. FACTUAL MATRIX

#4. For a comprehensive consideration of the issues involved, it is apposite, at the outset, to delineate the attendant factual matrix, which are set out in the ensuing paragraphs.

4.1 The Plaintiff is the registered owner of the Suit Property, which was originally leased from the Municipal Corporation of Delhi [hereinafter referred to as „MCD‟] pursuant to a perpetual lease dated

11.05.1971. It is stated that the Plaintiff thereafter constructed a three- storey building on the said plot from his own funds and resources.

4.2 It is further stated that the aforesaid property was subsequently converted into free-hold in favour of the Plaintiff vide a conveyance deed dated 05.01.2011. The Plaintiff bore all the expenses relating to the conversion, and on that basis, asserts exclusive ownership over the Suit Property as his self-acquired property. Signature Not Verified Signed By:SAVITA PASRICHA Signing Date:09.01.2026 16:51:13 RFA (OS) 05/2017 and connected matters Page 3 of 43

4.3 The Defendant, elder brother of the Plaintiff, was allowed to use and occupy the first floor, and two rooms along with one bathroom on the second floor of the Suit Property, purely out of natural love and affection. No consideration was ever charged from the Defendant for such use or occupation.

4.4 The Plaintiff states that the oral licence granted in favour of the Defendant was revoked in September 2006. Upon revocation, the Defendant sought 15 days‟ time to shift, remove his belongings, and hand over the physical possession of the premises. However, despite such assurance, the Defendant failed to vacate the Suit Property. Consequently, a legal notice dated 26.10.2006 was issued to the Defendant.

4.5 Despite due service of the aforesaid notice, the Defendant neither replied thereto nor complied with its terms. In terms of the notice, the licence to occupy the Suit Property stood revoked, and the Defendant was granted seven days time to vacate the premises, and handover vacant and peaceful possession to the Plaintiff.

4.6 Since the Defendant did not comply with the same, the present suit was instituted, seeking the following reliefs:

“A. A decree of possession be passed in favour of the Plaintiff and against the Defendant in respect of the entire first floor and two rooms and one bathroom on the Second Floor, as shown within red lines in the site plan attached with the plaint, of the property bearing No. A-8, Vishal Enclave, New Delhi. B. That a further decree of Rs. 2000/- on account of damages and mene profits be also passed in favour of the Plaintiff and against the Defendant, for the period of 04.11.2006 till the date of filing of the Suit. Signature Not Verified Signed By:SAVITA PASRICHA Signing Date:09.01.2026 16:51:13 RFA (OS) 05/2017 and connected matters Page 4 of 43 C. That a further decree @Rs. 1,000/- per day on such rate at which this Hon’ble Court may arrive at after holding enquiry under Order XX Rule 12 of the CPC be also passed in favour of the Plaintiff and against the Defendant as damages and mene profits pendente lite and future till handing over of its physical and vacant possession of the property in question. The Plaintiff undertakes to pay deficient court fee at the time of decree. D. Cost of the suit may also be awarded in favour of the Plaintiff against the Defendant. E. Any other or further order which this Hon’ble Court may deem fit and proper in the facts and circumstances of the case may also be passed in favour of the Plaintiff and against the Defendant.”

#5. The Defendant filed a written statement and also raised a counter- claim on the following grounds:

5.1 While the execution of the lease deed dated 11.5.1971 is not disputed, the Defendant denies that the Plaintiff is the exclusive owner of the Suit Property.

5.2 The ground floor of the Suit property was constructed out of the joint funds of the Plaintiff and the Defendant, whereas the first and the second floors were constructed solely by the Defendant using his own resources, pursuant to a family arrangement under which those floors were to belong exclusively to him.

5.3 The Defendant disputes the Plaintiff‟s assertion that the entire expenditure for conversion of the property from leasehold to freehold was borne exclusively by the Plaintiff.

5.4 It is further pleaded that the suit is not maintainable, is not properly valued, is barred by limitation, and is also barred by the law of adverse possession. Signature Not Verified Signed By:SAVITA PASRICHA Signing Date:09.01.2026 16:51:13 RFA (OS) 05/2017 and connected matters Page 5 of 43

5.5 According to the Defendants, upon the demise of the father of the parties, both the sons i.e. the Plaintiff and the Original Defendant, inherited his estate and business, a substantial portion of which was joint in nature. It is stated that the Plaintiff, Defendant, and their father jointly participated in the auction, and upon being declared successful, the property was purchased in the name of the Plaintiff, at the instance of their father, in order to circumvent the terms and conditions of the auction, which prohibited participation by a person already owning property in Delhi. The initial amount of Rs.10,300/-, as well as the subsequent instalments, are stated to have been paid out of joint funds.

5.6 The counter-claim further avers that the Plaintiff mortgaged the Suit Property to obtain a loan, and thereafter in November 1976, applied for sanction of building plans for construction of the ground floor. Upon approval, a dwelling unit was built using joint funds, as reflected in the occupancy certificate dated 16.05.1981. Both the families are stated to have shifted to the newly constructed ground floor on 04.11.1979. Prior thereto, the parties were residing together in another property bearing No. B-1, Radhey Puri, Delhi, which admittedly belongs to the Defendant, and whose ownership and possession are not in dispute. Under the alleged family arrangement, the Plaintiff was to assist the Defendant in securing sanction of building plans, and in the installation of water and electricity meters in the name of Defendant.

5.7 It is further stated that it was agreed between the parties that the first and second floors of the Suit Property would be constructed by the Defendant from his own funds, and that, in the event of sale of the Signature Not Verified Signed By:SAVITA PASRICHA Signing Date:09.01.2026 16:51:13 RFA (OS) 05/2017 and connected matters Page 6 of 43 Suit Property, the sale proceeds would be divided equally between the two brothers. The Defendants claimed to have utilised the funds received from the sale of Vivek Vihar Property, as well as the drawings from his business, towards the construction of the first and second floors, for which sanction was allegedly granted on

24.03.1988.

5.8 The Defendants plead that the records of the MCD reflected his name and that of his son, i.e. the Sandeep Rathi, were got noted as owners and occupants of the first and second floors of the Suit Property, since they alone interacted with municipal authorities. The reliance is placed on a notice dated 13.10.1989, which is stated to confirm their use and occupation of the said portions. In mid- 2003, at the request of the Plaintiff, the Plaintiff‟s son was permitted to use a part of the second floor, for the purpose of storage.

5.9 The Defendants also provide a detailed narrative of the family‟s movements, stating that after partition, the family initially stayed at Jammu with their maternal uncle, thereafter, moved to Karnal and subsequently settled in Delhi. During this period, several premises were taken on rent, following which, the parties shifted to Radhey Puri and throughout, the parties are said to have lived jointly as a family.

#6. The following issues were framed on 04.07.2007 in the suit- “1. Whether the plaintiff is entitled to a decree of possession in respect of A-8, Vishal Enclave, New Delhi, as claimed?

#2. Whether the plaintiff is entitled to damages/mesne profits of Rs.2000/-from the defendant till the period of filing of the suit Signature Not Verified Signed By:SAVITA PASRICHA Signing Date:09.01.2026 16:51:13 RFA (OS) 05/2017 and connected matters Page 7 of 43 and @ Rs.l000/- per day for the period after filing of the suit from the defendant as claimed or damages/mesne profits at any other rate? OPD

#3. Whether the suit is barred by limitation? OPD

#4. Whether the suit has not been properly valued and liable to be dismissed for want of court fee? OPD''

#7. The following issues were framed in the counter claim: "1. Whether the defendant is entitled to decree of declaration that he was the owner of 1st and 2nd floor and proposed owner of land underneath A-8, Vishal Enclave, New Delhi?

#2. CS(OS)No.2134/2006 Whether the defendant is entitled to mandatory injunction as claimed in the counter claim for removal of obstructions of plaintiff and his agents and servants etc in use and occupation of 1st and 2nd Floor of the property by the defendant?

#3. Whether there was any family settlement as claimed by the defendant dated 25.10.1970 and4.11.1979? OPD.

#4. Whether the counter claims have not been properly valued and are liable to be dismissed for want of proper court-fee?

#5. Whether the counter claims of the defendant are barred under Benami Transaction Act? OPD

#6. Relief"

#8. The Plaintiff placed reliance on the partnership deed (Ex. DW1/1) to demonstrate that the original parties were partners in a firm, thereby seeking to negate the existence of any Joint Hindu Family [hereinafter referred to as „JHF‟].

#9. During cross-examination, DW1 admitted that, on the date of auction, no registered property stood in the name of Sh. Trilok Chand Sethi. The Defendant also placed on record, a letter issued by MCD concerning unauthorised construction [Ex. DW1/16]. DW1 further Signature Not Verified Signed By:SAVITA PASRICHA Signing Date:09.01.2026 16:51:13 RFA (OS) 05/2017 and connected matters Page 8 of 43 acknowledged that the Vivek Vihar property had been sold by his father, who thereafter purchased a flat in Mumbai. DW1 also admitted that he was unable to produce any document to show that his father had ever paid house tax in respect of the Suit Property or borne any charges for converting the property from leasehold to freehold. The only document produced by DW1 in support of construction, was an invoice for 200 bags of cement, issued in his own name.

#10. DW1 deposed that the Suit Property was purchased in an auction, conducted in the year 1970. According to him, the original parties, their father, and an old friend of the Plaintiff, went for the MCD auction. The father was allegedly made aware of the terms and conditions of bidding, including the stipulation that a bidder should not own any other property in Delhi. A copy of these terms and conditions has been exhibited as Ex.DW1/2.

#11. DW1 further stated that the property bearing No. D-253 Vivek Vihar, which was in the name of the original Defendant, was sold after the parties shifted to the Suit Property on 04.11.1979. A copy of the passbook, exhibited as Ex. DW1/3, was relied upon, to show that funds from their joint account were used to pay household expenses relating to the Suit Property. A copy of the ration card of the Plaintiff has been exhibited as Ex. DW 1/8.

#12. DW1 further deposed that, pursuant to an alleged agreement of 1970, and subsequent family arrangements of 1974, and 04.11.1979, the first and second floors of the Suit Property were always intended to belong to the original Defendant. Signature Not Verified Signed By:SAVITA PASRICHA Signing Date:09.01.2026 16:51:13 RFA (OS) 05/2017 and connected matters Page 9 of 43

#13. The Plaintiff filed his evidence by way of an affidavit, exhibited as Ex.PW1/A, wherein it was deposed that the Suit Property was purchased by the Plaintiff in an auction conducted by the MCD for a sum of Rs.41,200/-, which was paid entirely from his own earnings. The original perpetual lease deed dated 11.05.1971, has been exhibited as Ex. PW1/2, and the Conveyance Deed dated 05.01.2001, executed in favour of the Plaintiff, has been exhibited as Ex.PW1/3. The documents pertaining to house tax, assessment orders, and various notices issued in the Plaintiff‟s name have been exhibited as Ex.PW1/5 to Ex. PW1/12. The site plan marking the portion in possession of the Defendant, in red, was exhibited as Ex.PW1/1. The copy of legal notice dated 26.10.2006, has been exhibited as Ex.PW1/15, postal documents such as UPC, have been exhibited as Ex.PW1/16, and the postal receipts, have been exhibited as Ex.PW1/17, respectively.

#14. To facilitate better comprehension and enable ready reference for all stakeholders, including the Appellate courts, the tabulated charts are incorporated hereinafter, summarising the witnesses examined and the documents exhibited. List of Plaintiff Witnesses examined- Plaintiff Witness No. Name of witness Description

#1. Rajinder Kumar Sethi Plaintiff Signature Not Verified Signed By:SAVITA PASRICHA Signing Date:09.01.2026 16:51:13 RFA (OS) 05/2017 and connected matters Page 10 of 43 List of Exhibited Documents by Plaintiff- Exhibit No. Description of the Exhibit P-1 Original letter dated 13.10.1989 by MCD P-2 P-3 Original Perpetual Lease Deed dated 11.5.1971 Original letter dated 04.11.1970 of acceptance of the bid of the plot in question written by the MCD List of exhibited documents by PW-1 Exhibit No. Description of the Exhibit Proved by/Attested Plaintiff Plaintiff Plaintiff Proved by/Attested

#6. Copy of Site plan showing the plot of the Suit Property Original perpetual Lease Deed dated 11.5.1971 Copy of a conveyance Deed dated 05.01.2001 Copy of Occupation Certificate obtained by the Plaintiff from MCD Assessment Order dated 02.09.97 House Tax paid by the Plaintiff 7-12 A copy of proposals to make some amendment in the assessment list by the MCD, seeking objection from the PW-1 PW-1 PW-1 PW-1 PW-1 PW-1 PW-1 Signature Not Verified Signed By:SAVITA PASRICHA Signing Date:09.01.2026 16:51:13 RFA (OS) 05/2017 and connected matters Page 11 of 43 claimant

#14. Reply to show cause notice dated 13.10.1989 against the Suit property by the Plaintiff dated 23.10.1989

#16. A. P-6 Copy of the notice dated 26.10.2006 sent by the Advocate to the Defendant, asking to shift from the premises Postal Documents Affidavit of PW-1 Photograph PW-1 PW-1 PW-1 PW-1 PW-1 List of Defendant Witnesses examined- Defendant Witness No.

#5. Name of Witness Description Sandeep Kumar Sethi Defendant No.1(a) Deepak Yadav Mahesh Nepali Raj Kumar Rana Ranbir Singh LDC Land and Estate Department Data Entry Operator at Delhi Public School Dealing Assistant in Lab (res.) DDA Dealing Clerk, Assessment & Collection Deptt., MCD

#6. Pawan Kumar Tekriwal Cement Stockist Signature Not Verified Signed By:SAVITA PASRICHA Signing Date:09.01.2026 16:51:13 RFA (OS) 05/2017 and connected matters Page 12 of 43

#20. Gurbachan Singh Jaggi Ex-civil contractor Vijay Handa Ex-Electrician Babu Lal Gupta Iron & Steel Business Shree Ram Dandona Architect Vijay Verma O.P. Maggon Chartered Accountant Retd. Addl. Dy. Commissioner Satish Kohli Businessman Krishan Kumar Nagpal Architect Abdul Malik Accountant Ashok Kumar Sahani Business Anand Kumar Chopra Consultant Qayam Ali Ritu Suri ASI House-wife Surender Singh Maura Clerk List of exhibited documents by Defendants– Defendant Witness-1 Exhibit No. Description P-2 Photograph P-3 Photograph of Marriage Proved by/Attested DW-1 DW-1 Signature Not Verified Signed By:SAVITA PASRICHA Signing Date:09.01.2026 16:51:13 RFA (OS) 05/2017 and connected matters Page 13 of 43 P-3 Photograph of Vandana Sethi P-5 P-7 P-I

#7. A letter dated 04.11.1970 by MCD to the Plaintiff, directing him balance amount of Rs.30,900/- to pay Photograph of cement bags letter dated 18.02.97 written by A Sandeep Sethi to the Deputy Assessor & Collector, requesting to fix next date of that Sh. hearing citing Rajinder Kumar Sethi is not available at that time i.e. on 19.02.97 reason partnership A dated 06.04.1964 between Sh. Rajinder Kumar Sethi and Sh. Sushil Kumar Sethi, mutually agreeing that now the business will be carried under the name and style of M/S. Tara Rubber Industries Terms & Conditions for the sale by auction by the MCD of perpetual lease hold rights in residential plots the passbook enclosing Copy of details that a joint saving bank was opened by the Plaintiff, in the names of both the Plaintiff and Defendant DW-1 DW-1 DW-1 DW-1 DW-1 DW-1 DW-1 Copy of one bill of the cement purchased DW-1 Documents issued under the RTI Copy of an affidavit of terms and conditions that the party should not own any other property in Delhi at the time of auction. DW-1 DW-1 Copies of the documents like Drafting and Executing the relinquishment deed DW-1 Signature Not Verified Signed By:SAVITA PASRICHA Signing Date:09.01.2026 16:51:13 RFA (OS) 05/2017 and connected matters Page 14 of 43 etc.

#8. Ration card of the Plaintiff DW-1 9

#20. Copy changed address letter with previous DW-1 Death certificate of Sh. Tilak Chand Sethi, father of the parties. Death certificate of the mother of the parties DW-1 DW-1 Indemnity Defendant dated 23.05.1978 original DW-1 Relinquishment Deed dated 20.05.1978, whereby the property bearing No. B-1, Radhey Puri, Delhi-51, was released by the Plaintiff in favour of the Defendant A copy of the documents, disclosing the correspondence assisted by the Plaintiff Copy dated 13.10.1989 issued the Defendant MCD notice Conversion from Lease Hold to Free hold of the Suit Property Photograph of gymnasium Copy of FIR dated 13.12.2000 u/s 323/365/511/34 IPC Photographs of driveway leading up to the stair as well as to be used for parking of cars by the Defendants DW-1 DW-1 DW-1 DW-1 DW-1 DW-1 DW-1 21 and 22 Photographs of main stair ways as well leading from the alternate one, DW-1 Signature Not Verified Signed By:SAVITA PASRICHA Signing Date:09.01.2026 16:51:13 RFA (OS) 05/2017 and connected matters Page 15 of 43 1st floor to second floor. 23 Photo gymnasium

#24. Photograph advertisement of DW-1 Defendant Witness-2 Exhibit No. Description

#8. Application dated 25.10.70 by the Highest Bider for the purchase of the perpetual lease hold rights A letter dated 04.11.1970 by MCD to the Plaintiff, directing him to pay the balance amount of Rs.30,900/- No objection certificate to mortgage the plot no.8, Sector B&C on Najaf Garh Road near Tagore Garden, New Delhi- 27. Request by the Plaintiff for grant of mortgage in respect of the aforestated plot. Mutation of Plot No. D-203, Jhilmil Tahirpur Residential Scheme Regarding carrying the mentioned development works in the construction of the building. Ration card of the Plaintiff Ration card of the Defendant DW-1 Proved by/Attested DW-2 DW-2 DW-2 DW-2 DW-2 DW-2 DW-2 DW-2 Signature Not Verified Signed By:SAVITA PASRICHA Signing Date:09.01.2026 16:51:13 RFA (OS) 05/2017 and connected matters Page 16 of 43

#18. Letter to the Defendant to deposit Rs.156 for 78 documents in reference to his application dated 30.11.2010 under RTI Act, 2005 Auction sheet dated 25.10.1970 Letter by the Plaintiff in reference to the direction of payment issued by the Assistant Commissioner Copy of site plan showing the plot of the Suit Property Letter dated 04.10.75, issued by the MCD to the Plaintiff, with regards to the possession of plot no. A-8, Sector B, Najafgarh Road, Delhi Acknowledgement by the Assistant Commissioner in regard to the receiving of an application from the Plaintiff along with Lease Deed of the said plot. Letter dated 21.11.1976, issued by the MCD to the Plaintiff, with regards to the possession of plot no. A-8, Sector B, Najafgarh Road, Delhi MCD confirms that the lease agreement is registered in the name of the Plaintiff with respect to Plot no. A- 8. Letter dated 29.11.1975 affirming that the possession letter is put up for the signatures. Certification that possession of 400 sq. Yds of land bearing plot no. A-8, taken by the Plaintiff. DW-2 DW-2 DW-2 DW-2 DW-2 DW-2 DW-2 DW-2 DW-2 DW-2 Signature Not Verified Signed By:SAVITA PASRICHA Signing Date:09.01.2026 16:51:13 RFA (OS) 05/2017 and connected matters Page 17 of 43

#28. Copy of Certificate issued by the Zonal engineer that the building no. A-8 has been inspected and declared that it is in conformity with all the requirements and is suitable for occupancy. DW-2 Copy of Perpetual Lease Deed dated 11.05.1971 DW-2 The Plaintiff intends to transfer by way of mortgage the urban land bearing No. A-I, Radhey Puri, Delhi-51. Copy of Grant of mortgage permission in respect of plot no.8, Sector B &C for which loan has been sanctioned for construction of building thereon. Copy of No objection certificate to mortgage the plot no.8, Sector B&C on Najaf Garh Road Copy of a Letter by the MCD to the Plaintiff, for payment of the outstanding amount of Rs.2064 against the ground floor rent. Assistant Commissioner received the lease deed of the Plaintiff. Copy of Application dated 16.12.1999, filed by the Plaintiff, for conversion of leasehold property into freehold property Copy of Indemnity Bond executed on 13.12.1999. Affidavit filed by the Plaintiff, asserting that no unauthorised property is being DW-2 DW-2 DW-2 DW-2 DW-2 DW-2 DW-2 DW-2 Signature Not Verified Signed By:SAVITA PASRICHA Signing Date:09.01.2026 16:51:13 RFA (OS) 05/2017 and connected matters Page 18 of 43 used only for residential purpose. An undertaking by the Plaintiff, to pay the amount in respect of Suit Property, on demand. A letter by the MCD in regard to the application for conversion of the property, stating that it is under process. Copy of Specimen signatures and Passport Size photographs of the person in whose favour conversion is sought duly attested. Copy of letter dated 18.08.97, Govt. Of NCT of Delhi informed the Plaintiff that the property has been free from loan and the documents are returned. Copy of Perpetual Lease Deed dated 11.05.1971 Copy of payment of rent amount of ground floor, paid by the Plaintiff [11.05.1996 to 10.05.1997] Copy of payment of rent amount of ground floor, paid by the Plaintiff [11.05.1997 to 10.05.1998] Copy of deficiencies marked by the MCD, in the application of the Plaintiff for the conversion of the property. Copy of the sanctioned plan of the Plaintiff‟s house submitted by the Plaintiff to the Deputy Commissioner. Copy of the Conveyance Deed Copy of the execution of Conveyance DW-2 DW-2 DW-2 DW-2 DW-2 DW-2 DW-2 DW-2 DW-2 DW-2 DW-2

#39. Signature Not Verified Signed By:SAVITA PASRICHA Signing Date:09.01.2026 16:51:13 RFA (OS) 05/2017 and connected matters Page 19 of 43

#41. Deed in respect of the Suit property. Copy of payment of rent amount of ground floor, paid by the Plaintiff [11.05.1998 to 10.05.1999] & [11.05.1999 to 10.05.2000] Copy of payment of rent amount of ground floor, paid by the Plaintiff [11.05.1999 to 10.05.2000] DW-2 DW-2 Defendant Witness-3 Exhibit No. Description

#5. Copy certifying that daughter of Mr. Ajay Sethi is a bonafide student of Delhi Public School and copy of enrolment form of his daughter Copy of Birth Certificate of daughter of Ajay Sethi. Copy of Health Card of the daughter of Mr. Ajay Sethi Copy of ration card of Ajay Sethi Copy of registration form of the daughter of Mr. Ajay Sethi

#8. Copy of enrolment form of the daughter of Ajay Sethi Copy of birth certificate of the daughter of Ajay Sethi Proved by/Attest ed by DW-3 DW-3 DW-3 DW-3 DW-3 DW-3 DW-3

#9. Copy of health card of the daughter of Ajay DW-3 Signature Not Verified Signed By:SAVITA PASRICHA Signing Date:09.01.2026 16:51:13 RFA (OS) 05/2017 and connected matters Page 20 of 43 Sethi

#13. Copy of Ration Card of Ajay Sethi DW-3 Copy of I-card of the daughter of Ajay Sethi DW-3 Copy certifying that daughter of Mr. Ajay Sethi is a bonafide student of Delhi Public School. DW-3 Copy of summons for producing the admission documents of son and daughter of Mr. Ajay Sethi DW-3 Defendant Witness No.-5 Exhibit No. Description Proved by/Attested P-I Copy of property tax assessment DW-5 Defendant Witness No.9 Exhibit No. Description A Certified copy of Rajasthan Iron Traders, certifying that they had supplied Tor Steel to the Defendant for construction of 1st and 2nd floor. Proved by/Attested DW-3 Defendant Witness No. 10 Exhibit No. Description Proved by/Attested Signature Not Verified Signed By:SAVITA PASRICHA Signing Date:09.01.2026 16:51:13 RFA (OS) 05/2017 and connected matters Page 21 of 43 A. Copy of the sanctioned plan of the suit property Defendant Witness No. 18 Exhibit No. Description A. C Copy of the cancellation report of FIR sent to concerned Mahila Court, Dwarka, New Delhi Defendant Witness No.19 Exhibit No. Description DW-10 Proved by/Attested DW-18 Proved by/Attested A. Copy of affidavit of the Defendant No.1(b) DW-19 i.e. Ritu Suri Defendant Witness No. 20 Exhibit No. Description A. Copy of FIR dated 02.07.2001 B. Copy of in re-complaint by wife Vandana Sethi with CAW cell, filed by Ajay Sethi Proved by/Attested DW-20 DW-20 Signature Not Verified Signed By:SAVITA PASRICHA Signing Date:09.01.2026 16:51:13 RFA (OS) 05/2017 and connected matters Page 22 of 43

#15. Upon consideration of the pleadings and evidence on record, the Suit was decreed in favour of the Plaintiff on the following grounds:

15.1 The Plaintiff successfully proved his ownership of the Suit Property, by virtue of the perpetual lease deed dated 11.05.1971 (Ex.PW1/2), and conveyance deed dated 05.01.2001 (Ex.PW1/3). He has also established that the sanctioned building plans, occupancy certificate, house tax records, electricity and water meters stood in his name. The Defendants failed to adduce any evidence to substantiate the existence or implementation of any family settlement. Furthermore, the Defendant did not place on record any documentary proof, to show that any expenditure was incurred by the original Defendant towards the construction of the ground, 1st or 2nd floors. Although reliance was placed on a bank passbook, the same did not establish payment of electricity or water charges, as claimed. Consequently, the Plaintiff was held to be the absolute owner of the Suit Property, and entitled to its possession. Accordingly, the issue no.1 in the suit and issue nos. 1 and 3 in the counter-claim were decided in the Plaintiff‟s favour.

15.2 The LSJ observed that there was no cross-examination or rebuttal by the Defendant with respect to the rate of damages/mesne profits claimed by the Plaintiff. Considering the relationship between the parties, damages/mesne profits @ Rs.30,000/- per month, were granted in favour of the Plaintiff and against the Defendant.

15.3 On the point of limitation, the Defendants failed to establish Signature Not Verified Signed By:SAVITA PASRICHA Signing Date:09.01.2026 16:51:13 RFA (OS) 05/2017 and connected matters Page 23 of 43 adverse possession over the Suit Property. No evidence or anything was produced to show that the suit was barred by limitation. Since, the license of the Defendant was revoked by a legal notice dated

25.10.2006, and the suit was filed on 06.11.2006, the Suit was held to be well within the period of limitation.

15.4 The onus pertaining to the issue no 4 in the suit was on the Defendant, however, the Defendant failed to discharge it. The suit had been valued by the Plaintiff in accordance with the market value of the Suit Property. The issue is, therefore, decided in favour of the Plaintiff and against the Defendant.

15.5 With regard to the issue no.2 in the counter-claim, the Defendant relied on photographs of the gym, allegedly run by Sh. Ajay Sethi, son of the Plaintiff, at the Suit Property, to establish the obstructions in the Defendant‟s use and occupation of the premises. However, in view of the Plaintiff having established his ownership and the Defendant having failed to prove any right, title, or interest in the Suit property, the said contention was rejected.

15.6 Pertaining to valuation of the Court Fee, in respect of the counter-claim, the LSJ held that the Counter Claims had been properly valued in terms of para 25 thereof. Consequently, this issue was decided in favour of the Defendant and against the Plaintiff.

15.7 Lastly, with regard to the issue no.5 in the counter-claim, in view of the bar contained under Section 4(2) of the Prohibition of Benami Property Transactions Act, 1988 [hereinafter referred to as „the Benami Act‟], this issue was decided in favour of the Plaintiff and Signature Not Verified Signed By:SAVITA PASRICHA Signing Date:09.01.2026 16:51:13 RFA (OS) 05/2017 and connected matters Page 24 of 43 against the Defendant.

#16. In light of these findings, the LSJ decreed the suit, in favour of the Plaintiff, and the Counter Claim stood dismissed accordingly. CONTENTION OF THE PARTIES

#17. The learned counsel for the Appellants/Defendants advanced the following submissions: RFA (OS) NO. 5/2017 & RFA (OS) NO. 10/2017

17.1 The Defendants aver that the Plaintiff could be said to be holding the Suit Property in a fiduciary capacity only as a member of the Hindu Family, and that the Suit Property was initially purchased, and subsequently developed by construction of various floors, out of common and joint family funds.

17.2 It is further averred that the LSJ has erred in failing to return any findings on a crucial argument raised on behalf of the Defendants, viz the averments of the Defendants in the counter-claim, having not been specifically denied or challenged by the Plaintiff, stood admitted, yet were completely ignored in the Impugned Judgement. In this regard, the Appellants specifically rely upon the averments pertaining to utilisation of joint funds, payments allegedly made for acquisition of the Suit Property by Late Sh. T.C. Sethi, from joint funds, expenditure incurred towards construction of the dwelling unit from joint funds, the alleged common business agreement of 1970, and the family arrangement dated 04.11.1979. According to the Defendants, these averments go to the very root of the matter and establish the Signature Not Verified Signed By:SAVITA PASRICHA Signing Date:09.01.2026 16:51:13 RFA (OS) 05/2017 and connected matters Page 25 of 43 counter-claim in their favour.

17.3 The Defendants further submit that it is settled law that the burden of proof to establish the quantum and justification of mesne profits, lies upon the party claiming the same. The Impugned Judgement, it is urged, has awarded mesne profits without any evidence on record, and solely on the ground of suggestion being made by the counsel of the Plaintiff.

17.4 It is also contended that the LSJ erred in awarding interest on an alleged amount termed as mesne profits. It is pointed out that the suit remained pending for several years, partly due to delays occasioned during mediation proceedings, and also because the Impugned Judgement remained reserved for a considerable period, for which the Defendants cannot be faulted.

17.5 The Defendants contend that it was an admitted fact that the land standing in the name of the father of the erstwhile parties stood acquired shortly prior to the date of auction by MCD. This fact assumes significance, in light of the terms of the auction, which stipulated that ownership of any other property would render the bid liable to rejection. It is for this reason, inter alia, that the bid was recorded in the name of the younger son, i.e., the Plaintiff. According to the Defendants, this crucial aspect has been completely overlooked by the LSJ.

17.6 The LSJ is also stated to have erred in ignoring the fact that everything including houses/residencies/businesses, income & expenditure etc. were joint and derived from a common source of Signature Not Verified Signed By:SAVITA PASRICHA Signing Date:09.01.2026 16:51:13 RFA (OS) 05/2017 and connected matters Page 26 of 43 funds namely, joint family business. This fact, it is contended, was not denied in the pleadings and stood admitted in evidence.

17.7 The Defendants further contend that the provisions of the Benami Act, and the settled law thereunder, have been ignored by the LSJ. According to the Defendants, the Plaintiff could only be said to be holding the Suit Property in a fiduciary capacity, as part of the Hindu Family, and that the Suit Property was purchased and developed out of common funds.

17.8 It is also argued that the LSJ inequitably noted the sale of the Vivek Vihar property by the Defendant, and the purchase of an alternative property at Dhanu Road, Maharashtra, while completely ignoring the comparative monetary values involved transactions.

17.9 The Defendants assert that joint bank account of the business was used for making payment for all property tax, electricity, water, repayments of loan, and construction related payments. This, according to them, was consistent with the understanding that the Suit Property was joint, and that steps would subsequently be taken to record joint ownership in official records, pursuant to the family arrangement.

17.10 It is further pertinent to note that that even the Plaintiff has utterly failed to show any source of his funds for the construction, which he claims to have undertaken from his own resources. It is submitted that the Plaintiff had no known source of income at the relevant time, whereas, the Defendants had demonstrated availability Signature Not Verified Signed By:SAVITA PASRICHA Signing Date:09.01.2026 16:51:13 RFA (OS) 05/2017 and connected matters Page 27 of 43 of funds through sale of properties, constitute facts which were allegedly ignored by the LSJ.

17.11 The Defendants also contend that the LSJ erred in relying upon the judgement in Hemaji1, as the facts of that case were entirely distinguishable and the law laid down therein was not applicable to the present matter.

17.12 It is further submitted that the LSJ failed to apply the law laid down by the Apex Court in, Marcel Martins v. M. Printers2. The circumstances, in which the Suit Property was purchased in the name of the Plaintiff, assumes great importance while determining whether the Plaintiff held the property in a fiduciary capacity vis-à-vis the Defendants. On this basis as well, the Defendants assert that the Suit property was acquired and developed from common funds.

17.13 The LSJ is also stated to have erred in accepting the Plaintiff‟s contention that the jewellery belonging to his wife was sold to finance construction of the Suit Property. This claim, according to the Defendants, stood completely demolished, during the Defendant‟s cross-examination on 25.10.2010, wherein he admitted that no documentary proof such as income tax returns or bank statements was available, to establish the availability of funds or the existence of such jewellery.

17.14 The Defendants further rely upon evidence led by the Defendant No.2 to contend that the only gold in the household was