Full Text
HIGH COURT OF DELHI
Date of Decision: 06th FEBRUARY, 2026 IN THE MATTER OF:
IN
SH. RAM KUMAR & ORS .....Plaintiffs
Through: Mr. Pankaj Vivek and Mr. Tarun Kumar, Advocates
Through:
JUDGMENT
1. The present application under Section 24 of the Code of Civil Procedure, 1908, has been filed with the following prayers:- “a. Withdraw the
(i) RCA No. 30/2025 titled as "Braham Chand
(Through LR's) Vs Jai Dayal (through LR’s) & Anr.” and
(ii) RCA No. 22/2024 filed as "Om Prakash Vs.
Braham Chand (through LR's) & Ors." from the court of District Judge-O[5] (South-West), at Dwarka, New Delhi; and consolidate the said appeals with the CS (OS) NO. 404/2017 titled as "Ram Kumar & Ors. Vs Mahender SINGH KIRMOLIYA 03.09.54 & Ors." pending in this court for being heard and decided with this suit; and b. Pass such other and further orders in favour of the applicants/plaintiffs as deemed fit and proper in the facts and circumstances of the case.”
2. The instant suit has been filed by the Plaintiffs with the following prayers:- “a. Pass a decree in favour of the plaintiffs, thereby entitling them to jointly recover possession of suit property i.e. land measuring 423 sq. yds. out of Kh. NO. 163, situated in the lal dora abadi of Village Paprawat, Tehsil Kapashera, New Delhi, as shown in red colour in the site plan filed with the plaint, from the defendants no. 1 to 12 and defendants no. 17 and 18; and b. Pass such other and further orders in favour of the plaintiffs as deemed fit and proper in the facts and circumstances of the case.”
3. Shorn of unnecessary details, the facts leading to the filing of the instant application are as follows:a. It is averred in the plaint that the Plaintiffs/Applicants and the Defendants are all the descendants of one Ram Sahay, who owned substantial land in Village Paprawat, Tehsil Kapashera, New Delhi. Ram Sahay had four children, namely, Richpal, Ramji Lal, Hardwari and Deep Chand. b. Richpal had a son Brahm Chand and the Plaintiffs are the descendants of Brahm Chand and Richpal. Defendant No.1 to 7 are the descendants of Ramji Lal. Defendants No.8 to 12 are the descendants of Hardwari. Defendants No.13 to 16 are the descendants of Deep 03.09.54 Chand. Defendants No.17 and 18 are strangers to the family, who according to the Applicants are illegal occupants of the suit property for which possession has been sought in the present Suit. c. In the instant application, a tabulated format has been given showing the Khasra numbers, area and the ownership status. According to the Plaintiffs, some of the Khasras are jointly owned, some are exclusively owned by the Plaintiffs, and some are owned by Defendants No.1 to 12 and Defendant No.13 to 16. The said table reads as under:d. It is pertinent to mention that the parties have filed a number of suits against each other. Defendant No.1 to 12 have filed CS(OS) No.351/1990 before the Civil Judge, Delhi seeking permanent injunction against the predecessor-in-interest of the Plaintiffs for 03.09.54 interference in Khasra No. 160 which according to the Plaintiffs is jointly owned by all the parties other than Defendant Nos.17 and 18. The said suit was withdrawn by Defendants No.1 to 12 with liberty to file a suit for partition in respect of Khasra No.160. e. After withdrawing CS(OS) No.351/1990, Defendants No.1 to 12 filed a partition suit on CS SCJ No.604/1991 titled as Jai Dayal v. Brahm Chand, seeking partition of Khasra No.160. The said suit was renumbered as CS No.762/2009. f. It is pertinent to mention that the Plaintiffs who are also joint owners and in possession of some portion of Khasra No.160 (0-7) filed a suit bearing CS No.39/2013 titled as Braham Chand v. Mahender Singh & Ors., for injunction in the District Courts, Dwarka, Delhi stating that the Defendants are interfering with their possession in Khasra NO. 163. In the said suit bearing CS No.39/2013, a Local Commissioner was appointed by the Court vide Order dated 02.02.2017 to demarcate Khasra No.163. The demarcation was carried out by the revenue authorities and a demarcation report dated 21.07.2017 was filed by the Local Commissioner with respect to the properties in Khasra No.163. g. It is pertinent to mention that a petition was filed for transferring CS No.39/2013 (New CS No.977/2017) which was filed by the Plaintiffs to be tried along with CS No.762/2009 and this Court vide Order dated 01.05.2017 in TR.P.(C.) 84/2015 transferred CS No. 39/2013 from District Courts, Dwarka, Delhi to Tis Hazari Courts, Delhi. h. Neither the plaint nor this application reveals as to what happened to CS No.39/2013 on transfer from District Courts, Dwarka, Delhi to Tis Hazari Courts, Delhi. 03.09.54 i. Be that as it may, after consolidation of CS No.39/2013 & CS No.762/2009, the case was re-numbered as CS No.6989/2016. CS No.762/2009 filed by Defendants No. 1 to 12 for partition with respect to Khasra No. 160 was decreed vide Order dated 10.11.2023 and two regular civil appeals bearing RCA 30/2025 and RCA 22/2024 have been filed and the same are pending with District Judge-05, (South-West), Dwarka, Delhi. The issue raised in these appeals is regarding non-adjudication of equitable set off before decreeing the Suit of partition. j. While these appeals are pending, the present suit is filed by the Plaintiffs in this Court. In the present suit, it is the case of the Plaintiffs that the Plaintiffs and their predecessor-in-interest were under the bona fide impression that they were in possession of Khasra No.163 and the Defendants and their predecessors-in-interest were of the impression that they were not in possession of Khasra No.163. It is stated that CS No.39/2013 which was filed by the Plaintiffs in the District Courts, Dwarka, Delhi was filed only because the Defendants started interfering with their possession in Khasra No.163. k. It is stated in the plaint that the demarcation report dated 21.07.2017 shows that the Plaintiffs are in possession of (0-8-6) i.e., 8 Biswa and
6 Biswanshis measuring about 418 sq. yds. out of Khasra No.163 having total area of 17 Biswas i.e., about 857 sq. yds. and the rest of the suit land bearing Khasra No.163 is encroached by the Defendants in the following manner:-
┌────────────────────────────────────────────────────────────────────────────────────────────────────────────────┐ │ in the following manner:- │ │ Sl. No. Encroached area of Khasra No.163 Encroached by │ │ Signature Not Verified │ │ Digitally Signed By:HARIOM │ │ SINGH KIRMOLIYA │ │ CS(OS) 404/2017 Page 5 of 18 │ ├────────────────────────────────────────────────────────────────────────────────────────────────────────────────┤ │ 1. 0-8-8 Defendants no. 1 to 12 │ │ (8 Biswa and 8 Biswanshi) (Descendants of Ramjilal │ │ & Hardwari) │ │ i.e. 423 sq. yds. Marked in red │ │ coloured boundary in site plan And Defendants No. 17 & │ │ 18. │ │ 2 0-1-6 Rasta (public passage) on │ │ south-east side of suit │ │ (1 Biswa and 6 Biswanshi) │ │ property. │ │ i.e. 65 sq. yds. │ │ l. The Plaintiffs, therefore, have come up to this Court by filing the │ │ instant suit of possession in Khasra No.163 against the Defendants. │ │ m. This application i.e., I.A. 32044/2025 has been by filed the Plaintiffs │ │ for withdrawing the two regular civil appeals bearing RCA 30/2025 │ │ and RCA 22/2024 which are pending before District Judge-05, │ │ (South-West), Dwarka, Delhi arising out of CS No.6989/2016 and │ │ transfer the same to this Court by consolidating the said appeals with │ │ the instant suit. │ │ 4. This application has been filed by the Plaintiffs for transfer of the │ │ appeals before this Court stating as under:- │ │
│ └────────────────────────────────────────────────────────────────────────────────────────────────────────────────┘
5. This Court put up a pointed question to the learned Counsel for the Plaintiffs that when there is a separate roster of transfer of cases, then should not the Plaintiffs have filed a separate application for transferring of the case under Section 24 of CPC and can an application under Section 24 of the CPC be filed in a pending suit.
6. It is stated that the demarcation report shows that the Plaintiffs have built their house on pieces of plot in 0-8-6- in Khasra No. 163 measuring 418 sq. yds., 0-3-9 in Khasra No.162 measuring 174 sq. yds., 0-3-18 in Khasra No.160 measuring 197 sq. yds. and 53 sq. yds on the rasta on North- 03.09.54 Western side of Khasra No.163. It is also stated that all the land owners have built their house in a straight line on the side of the road on believing that the road has been demarcated properly by the municipal authorities but after demarcation, all the houses have been shifted towards North West. It is the case of the Plaintiffs that there is no deliberate encroachment as more land is left out of Khasra No.163 and that the property has been constructed in ignorance of the correct demarcation.
7. It is stated that the land of the parties is in such irregular shape that plaintiffs could not have accurately measured the land and thus the actual position has emerged only after demarcation by TSM method on 21.07.2017. Moreover, the Defendants/their predecessors also believed that the Plaintiffs were not holding excess land in Khasra No. 163 but had some issues with respect to land in Khasra No. 160. Thus, possession of the parties was never adverse to the interest of another as they are descendants of a common ancestor and real position has emerged only upon demarcation.
8. It is further stated that Defendants No. 1 to 12, being descendants of Late Sh. Ramjilal and Late Sh. Hardwari are entitled to 14 Biswas of land in Khasra. No. 164 plus 176 sq.yds. of land as 1/2 share in Khasra No. 160. Thus, they are entitled to total area of 881 sq. yds. out of land in Khasra NO. 164 & 160, but they are already in possession of more land. As per the demarcation report prepared by TSM method, Defendants No. l-12, 17 &. 18 are in possession of 423 sq. yds. of land out of Khasra No. 163. Defendants No. 17 and 18 claim to be in possession of Khasra No. 164 under the Defendants No. 1-12. This encroached area of 423 sq. yds. out of Khasra No. 163 of Abadi of Village Paprawat is referred to as suit property and shown in red colour in the site plan filed with the plaint. 03.09.54
9. It is further stated that the parties to the suit i.e. Plaintiffs and Defendants No. 13 to 16 (descendants of Late Sh. Deep Chand) have already built pucca houses on Khasra No. 160 (0-7), and any partition/division by metes and bounds in CS SCJ No. 6989/2016 shall cause insurmountable loss and harm to them, whereas, equities could be adjusted by letting the Plaintiffs and Defendants no. 13-16 remain in possession of Khasra No. 160 as per their present occupation/ possession. And after such adjustment, only 225 sq. yds. out of Khasra No. 163 would be left to be recovered from the Defendants No. 1-12, instead of 423 sq. yds. as found by demarcation.
10. It is stated that the Plaintiff No. 1 had requested the Defendants to agree to the mutual adjustment of the land and resolution of disputes by personally meeting them on 21.07.2017 but the defendants flatly refused to any mutual settlement/ adjustment of suit of partition of Khasra No. 160 or of returning any land encroached by them.
11. It is the case of the Plaintiff that CS SCJ No. 6989/2016 though has been decreed but appeals have been filed primarily on the ground of nonadjudication of issue of set off and therefore, it would be expedient and fair to the parties if this Court exercises its suo motu power to withdraw the appeals from the court on District Judge and consolidate the cases in the instant suit and dispose of the same by deciding them together.
12. Heard learned Counsel for the parties and perused the material on record.
13. As stated earlier, it was pointed out that when there is a separate roster of transfer, is it proper for the Plaintiffs to move an application in a pending suit for transfer of other suits of other appeals in different courts, albeit, for 03.09.54 entirely different reliefs or whether it can be moved under Section 24 of the CPC itself.
14. For the sake of convenience, Section 24 of the CPC reads as under:- “Section 24. General power of transfer and withdrawal. (1) On the application of any of the parties and after notice to the parties and after hearing such of them as desired to be heard, or of its own motion without such notice, the High Court or the District Court may at any stage (a) transfer any suit, appeal or other proceeding pending before it for trial or disposal to any Court subordinate to it and competent to try or dispose of the same, or (b) withdraw any suit, appeal or other proceeding pending in any Court subordinate to it, and
(i) try or dispose of the same; or
(ii) transfer the same for trial or disposal to any
(iii) retransfer the same for trial or disposal to the
Court from which it was withdrawn. (2) Where any suit or proceeding has been transferred or withdrawn under sub-section (1), the Court which [is thereafter to try or dispose of such suit or proceeding] may, subject to any special directions in the case of an order of transfer, either retry it or proceed from the point at which it was transferred or withdrawn. [(3) For the purposes of this section, (a) Courts of Additional and Assistant Judges shall be deemed to be subordinate to the District Court; (b) proceeding includes a proceeding for the execution of a decree or order]. 03.09.54 (4) The Court trying any suit transferred or withdrawn under this section from a Court of Small Causes shall, for the purposes of such suit, be deemed to be a Court of Small Causes. [(5) A suit or proceeding may be transferred under this section from a Court which has no jurisdiction to try it.]”
15. A Division Bench of this Court in Ashok K. Chauhan v. Formosa Plastics Corporation, USA, 2017 SCC OnLine Del 7128, has observed as under:-
16. Be that as it may, even though there is a separate roster, in exercise of powers under Section 151 of the CPC read with Article 227 of the Constitution of India, this Court can also consider the issue of transferring a particular case from the Trial Court to this Court. This Court while deciding a suit does have the power to transfer any suit, appeal or has power to withdraw the appeal or suit pending before any court subordinate to it, provided, there are valid reasons even though there is a separate roster for this purpose.
17. It is pertinent to mention that when an appeal is transferred by a High Court from a court subordinate to it, the parties lose a right of second appeal which is available to them under law. Since the effect of such a transfer by the High Court is that substantial rights of the parties are lost, before transferring the matter to itself, the High Court must be exceedingly circumspect while exercising this power to transfer a case to itself.
18. CS No.6989/2016 which was filed by Defendants No.1 to 12 is for partition with respect to Khasra No.160. In the said Suit, an additional issue was framed which reads as under:
03.09.54
19. The afore-mentioned additional issue was framed regarding equitable set off for Khasra No.160. The said additional issue was answered as under: “Additional issue no.1 The burden to prove this issue is on LRs of defendant no.1. The contention of the LRs of the defendant no.1 is that LRs of the plaintiffs are in possession of their land in Khasra no. 164 upto 423 sq. yards and the LRs of defendant no.1 are in occupation of 109 sq. yards of the extra land in Khasra no. 160 than their share. The said issue has been framed on the contentions of the LRs of defendant no.1 that extra 109 sq. yards of land in possession by them in Khasra no.160 be equitably set-off with the land in occupation or encroached by the LRs of plaintiffs in Khasra no.164 which is in the exclusive ownership of LRs of defendant no.1. The pricinciple of Equitable set-off is nowhere mentioned in CPC, 1908 rather Legal set-off is mentioned and which is applicable only in case of ascertained sum of money. The principle of equitable set off is provided under "equity, justice and good conscience", The legal set off can be claimed as a matter of right. The equitable set-off is granted on the facts and circumstances and on the discretion of the Court. In the present case, the LRs of defendant no.1 have filed a suit for possession against the LRs of the plaintiffs before Hon'ble High Court of Delhi claiming that the LRs of the plaintiffs have encroached and in possession of 423 sq. yards in their land in Khasra no.164 and that matter is still pending before Hon'ble High Court of Delhi and is sub-judice. Therefore till date, it has not been decided whether the LRs of plaintiffs are in possession of land in Khasra no.164 03.09.54 which is owned by LRs of defendant no.1 and consequently, equitable set-off is not possible. Moreover, the said fact is also admitted by D1W[1] during his cross-examination that they have filed the suit in Hon'ble High Court of Delhi seeking possession of 423 sq. yards in Khasra No.l64. The LRs of defendant no.l are claiming set-off on the basis of rights which have not been decided and matter is already sub-judice before Hon'ble High Court of Delhi. In view of these facts and circumstances, the LRs of defendant no.1 failed to prove this issue. Accordingly, additional issue no.1 is decided against the defendants and in favour of plaintiffs.”
20. Appeals have been filed primarily challenging the finding in the additional issue and also on the decree of partition as that would have a bearing on the shares between the Parties.
21. On the other hand, the present Suit is for possession of Khasra NO. 163 which has been filed by the Plaintiffs. There is no prayer for equitable set off in the present Suit. There is no application also under Order VI Rule 17 of CPC which is pending in the Suit at this juncture. Equitable adjustments are primarily to be done by the Revenue Authorities as consolidation of land is an administrative issue to be decided under the provisions of various land laws which are applicable in the area. Of course, this observation is only prima facie in nature and the same would be decided in the first appeal. Since both the Suits deal with different Khasra numbers, this Court is not making any observations on this aspect.
22. This Court does not find any commonality of issues in both the Suits which deal with different Khasra numbers i.e., one deals with Khasra No.160 and the other deals with Khasra No.163. 03.09.54
23. The application is dismissed.
24. It is always open for the Plaintiffs to take steps in accordance with law.
25. List before the learned Joint Registrar for further proceedings on 11.03.2026.
SUBRAMONIUM PRASAD, J FEBRUARY 06, 2026 hsk/sm