Rameshwar Pal v. Chander Dass

3. Whether the suit is not properly valued for the purposes of court fee and jurisdiction? OPD.

4. Whether this court has no pecuniary jurisdiction? OPD.

5. Whether plaintiff is entitled to damages? If so, at what rate and for which period? OPP.

6. Whether the plaintiff is entitled to the injunction claimed? OPP.

7. Relief.”

15. The Plaintiff Chander Dass examined himself as PW-1 and stated that the suit property was purchased by him from Shri C.R. Oberoi in the year 1984, from his own funds. After purchase, he along with his family shifted to the property. He further deposed that the Defendant being his younger brother and having no independent accommodation, he gave him permission to occupy the suit premises.

16. Plaintiff further stated that the Conveyance Deed dated 20.07.1995 was executed by DDA in his favour, after conversion of the property into freehold. He categorically denied the existence of any Hindu Undivided Family and also denied that either his father Amar Pal or the Defendant Rameshwar Pal had contributed any amount towards purchase of the suit property. He consistently maintained that the property was his self-acquired property and that the defendant was only a licensee, whose licence stood terminated through legal notices dated 07.06.1996 and 09.01.1997.

17. PW-2 Sh. Amar Singh, father of Plaintiff and deposed that there was no Hindu Undivided Family. The suit property was purchased by the Plaintiff by his own earnings and that neither he nor Defendant, contributed any money towards the purchase of the suit property. He further stated that the defendant was not doing any business in 1978 and did not pay any single penny to him.

18. PW-3 Sh. Virender Saini, Architect deposed that he had prepared the Site Plan Ex. PW1/1 of premises no. G.145 Paschim Vihar, New Delhi and disputed portion was shown in red.

19. PW-4 Sh. Sukhveer Singh proved the original Conveyance Deed Ex. PW1/2, which bears his signature.

20. DW-1 Rameshwar Pal, Defendant deposed that he along with his brother Chander Dass started the business in the name of Peerless Company. He was Field Officer and his elder brother Plaintiff was Special Organiser in the Peerless Company. In 1978, income of the Defendant was Rs 500/- per month which was raised to 3000/- per month, which was handed over by him to his parents. After 1986, the Peerless Company and its reputation was affected and suffered great loss. The earnings of the defendant had been taken over by the plaintiff, and the defendant became jobless for 2 years.

21. He further deposed that the suit property was purchased from the funds of the joint family i.e. joint collected funds and savings kept by the father and the plaintiff being the elder brother. Thus, plaintiff is not the owner of the suit property independently, but is only co-owner of l/3rd share in the property. He denied that he was a mere licensee under the plaintiff.

22. DW[2], Jallo Devi, mother of Plaintiff and Defendant deposed that her husband Amar Pal Singh retired, just before purchasing the suit property in

1984. She supported DW-1 and deposed that the suit property was purchased by the Plaintiff from the joint earnings and joint funds including the savings and earnings from the income of her husband, Plaintiff and Defendant. Thus, Plaintiff and Defendant are co-owners of the suit property. She further deposed that the joint family was separated, when defendant became jobless and after the birth of his daughter, financial condition of the defendant became poor.

23. Learned Civil Judge, on appreciation of evidence, noted that the Conveyance Deed dated 20.07.1995 Ex.PW-1/2 was in the name of the Plaintiff, while Defendant had merely claimed that the funds had been provided from joint Hindu Undivided Family funds. But from the evidence, it was not established that there existed any HUF. It was thus, concluded that the Plaintiff was the owner of the suit property and the Suit for Mandatory Injunction was decreed and Defendant / Appellant was directed to hand over the possession of the suit premises to the Plaintiff.

24. Thereafter, vide Judgment dated 05.09.2012, it was observed that there was no cogent evidence to prove the Damages; therefore, the claim for Damages was denied.

25. The Defendant/Appellant filed RCA DJ No.60773/16 to challenge the Judgment allowing Mandatory Injunction. The Plaintiff Chander Dass, also filed RCA DJ No.60898/16 challenging the denial of damages to the Plaintiff.

26. Learned District Judge, in his impugned Judgment dated 18.12.2025, reappreciated the evidence led by the parties and concurred that the relationship between the parties was that of the licensor and licensee. The Appeal of the Defendant was dismissed, vide impugned Judgment dated 18.12.2025.

27. In RCA DJ No.60898/16, learned District Judge took note of the area, measurement and locality of the Suit Property and observed that damages @ Rs.100/- per day from 01.02.1997 till vacating of the suit property as claimed by the Plaintiff, were not unfounded. Accordingly, Judgment denying the damages was set aside, and the Plaintiff was granted damages @100/- per day w.e.f. 01.02.1997 till vacation of the suit property. The Plaintiff’s Suit for Damages was decreed, vide Judgment dated 19.12.2025.

28. Aggrieved by the impugned Judgment dated 18.12.2025, upholding the Decree of possession, against him, Appellant Rameshwar Pal has preferred present Regular Second Appeal, wherein proposed substantial questions of law were framed, as under: “(i) Whether the Courts below committed error of law and material irregularity in treating the Respondent's title as conclusively proved on the basis of the conveyance deed dated 20.07.1995 (Ex. PW-1/2) in the absence of proper proof by the Respondent and without examining the Appellant's specific plea that the said deed was executed without authority under the GPA dated 26.09.1984, whose Clause 11 authorised only execution of an agreement to sell and did not authorise execution of a registered conveyance deed, thereby rendering the findings legally unsustainable?

(ii) Whether the learned First Appellate Court acted with material irregularity and jurisdictional error in dismissing the Appellant's two applications for additional evidence under Order XLI Rule 27 CPC, seeking to place on record documents discovered during the pendency of CS No. 218/2013 (partition suit, also concerning the suit property) pending before this Hon'ble Court, without examining the admissibility of secondary evidence, thereby shutting out vital documentary evidence exposing the Respondent's concealment of material facts and resulting in failure of justice?

(iii) Whether the Courts below misapplied the law relating to burden of proof and recorded perverse findings by ignoring material admissions of PW-1 (including joint ration card, common mess and absence of proof of licence) while rejecting the Appellant's plea of joint family/ HUF funds and joint ownership, and by wrongly placing the entire onus on the Appellant and relying primarily on the absence of HUF records and the testimony of PW-2?

(iv) Whether the Courts below erred in law in determining valuation and pecuniary jurisdiction on the assumption of a licensor-licensee relationship, despite the Appellant disputing such status and PW-1 admitting absence of proof of licence, and whether the decree passed without proper pecuniary jurisdiction is legally unsustainable, in view of Section 21(2) CPC read with Section 11 of the Suit Valuation Act, 1887?

(v) Whether the Courts below erred in law in deciding limitation on the assumption of a licensorlicensee relationship and treating notice dated 07.06.1996 as the starting point, without first determining the nature of the Appellant's possession as owner/coowner, in the context of bar under Article 65 of the Limitation Act, 1963?

(vi) Whether the finding on limitation is legally unsustainable as it proceeds on the assumption of a licensor-licensee relationship and treats the notice dated 07.06.1996 as the starting point of limitation without first determining the true nature of the Appellant's possession (owner/co-owner versus licensee), in the context of Article 65 of the Limitation Act, 1963 and the Appellant's plea of title?

(vii) Whether, in view of the amendment dated

16.09.1999 converting the suit from 'mandatory injunction' to a "suit for possession", the Courts below failed to apply the correct legal principles in treating the suit as maintainable and valued on a licensor-licensee cause of action, thereby overlooking the material change in the nature and character of the suit?

(viii) Whether the impugned judgment of the First

Appellate Court is legally vitiated for failure to discharge its mandatory duty under Section 96 read with Order XLI Rule 31 CPC to independently re-appreciate the entire evidence and record specific and reasoned findings thereon?

(ix) Whether a suit simpliciter for possession is maintainable without seeking declaration of title, when the Appellant had raised a substantial and documented cloud over the Respondent's title, including the alleged invalidity of the Conveyance Deed dated 20.07.1995, which forms the basis of the Respondent's claim?

(x) Whether the findings recorded by the Courts below are perverse in law for having been returned by ignoring material admissions and evidence on record and by misplacing the burden of proof, thereby warranting interference by this Hon’ble Court under Section 100 CPC?

(xi) Whether the suit filed by the Respondent is defective and liable to be dismissed for the non-joinder of a necessary and proper party, namely Smt. Kanta Devi, in whose joint name the foundational General Power of Attorney dated 26.09.1984 was executed?

(xii) Whether the Ld. Courts below violated the fundamental principles of natural justice by relying on a belatedly filed bank passbook to establish the Respondent's self-acquired funds, while arbitrarily denying the Appellant the statutory right to lead rebuttal to expose the forged entries?”

29. The grounds of challenge are that the Judgment of the learned Civil Judge, which has been upheld by the learned District Judge, is erroneous, both on facts and in law. The settled legal principles have been misapplied, and the findings have been given, which are unsupported by the pleadings and evidence on record. The Courts have proceeded on assumptions of a relationship of licensor and licensee, on account of the relationship between the parties, even though there is no cogent evidence establishing such relationship.

30. Learned First Appellate Court had merely reproduced and affirmed the findings recorded by the learned Civil Judge, without proper analysis of the pleadings, evidence and documents on record for proof therein. The findings of both Courts, are perverse and based on misreading and nonconsideration of material evidence on record.

31. DW-2 Smt. Jallo Devi, mother of parties, had deposed that the Suit Property had been purchased from the collective contributions of the family members and that they all had been residing therein as members of a joint Hindu Family. The Courts have selectively relied upon certain portions of the Respondent‟s evidence, while ignoring material admissions and circumstances supporting the Appellant‟s case.

32. Several material documents and circumstances, relevant to the determination of the nature and ownership of the suit property, have been ignored. The evidence has not been appreciated, and legal principles have been incorrectly applied.

33. Furthermore, during the pendency of the Suit for Partition, the Respondent / Plaintiff himself had expressed his willingness to resolve the family dispute amicably and accordingly, an Application under Order XXIII of C.P.C. was filed. Though the proposed Settlement ultimately did not fructify, the Appellant was transposed as a Plaintiff in the Suit for Partition.

34. Appellant had filed two separate Applications under XLI Rule 27 of CPC, before the First Appellate Court, seeking additional evidence. First Application dated 22.05.2019 was filed to place on record the list and copies of documents filed in the Suit for Partition, including the documents relating to the chain of title and ownership of the suit property. The Respondent never produced the originals of these documents, before the learned Civil Judge.

35. These documents included GPA dated 26.09.1984, which forms the very foundation of the Respondent‟s claim to title was executed in favour of Shri Amar Singh Pal, father of the parties and Smt. Kanta Devi, Respondent‟s wife. Despite the centrality of this document to the Plaintiff‟s claim for ownership, Smt. Kanta Devi was never examined as a witness by the Plaintiff during the trial.

36. Subsequent production of these documents by the Plaintiff himself in the Partition Suit, after having withheld them during the trial, clearly demonstrate suppression of material evidence and lack of candour before this Court.

37. Despite the Appellant having filed an Application under XLI Rules 12 and 14 of CPC read with 151 CPC, as early as on 06.06.1997 seeking discovery and production of the documents, this Application was opposed by the Plaintiff, who deliberately withheld the original documents, but subsequently produced them in the Partition Suit, clearly establishing suppression of material evidence, before the learned Civil Judge.

38. Second Application under XLI Rule 27 of CPC dated 08.07.2019, was filed by the Appellant to bring on record the Declaration made by the plaintiff wherein he allegedly admitted that the property was purchased from the from the contribution of the father and both brothers, and the family was residing jointly as Hindu Undivided Family.

39. The Application under Order XLI Rule 27 of CPC has been dismissed vide Order of the same date, i.e. 18.12.2025, without considering that the Appellant intended to place on record material documents, which related to the core issue involved in the dispute. The Application was dismissed in a mechanical manner, without examining whether the documents were necessary for adjudicating the present controversy.

40. The Appellant had explained the circumstances in which the documents had surfaced during the proceedings in the Suit for Partition bearing CS (OS).218/2013, titled as Krishna and Anr. vs. Shanti and Ors., filed by the sisters of the parties, seeking partition of the suit property as well as ancestral properties of the family, which is pending before this Court. while the Appeal was pending.

41. The existence of this document came to light only during the pendency of the Appeal. Moreover, the pendency of this CS (OS).218/2013 for partition in this Court, itself establishes that the alleged claim of exclusive ownership of the Plaintiff, is seriously disputed by other family members as well.

42. This Application had been rejected by the learned District Judge, primarily on the ground that the documents produced by the Appellant were photocopies and the original had not been filed. Such reasoning is legally unsustainable and is a mechanical exercise of jurisdiction. It was not considered whether the Declaration document was material and necessary for determining the real controversy between the parties and whether the Appellant needs to be given an opportunity to lead additional evidence.

43. The refusal to consider material evidence which goes to the root of the dispute, has materially affected the decision of the case and has resulted in incomplete adjudication of the controversy, in regard to the ownership of the Suit Property.

44. The substantial questions of law, in regard to proper scope and Application XLI Rule 27 of CPC and the duty of the First Appellate Court to permit additional evidence which is necessary for determination of real controversy between the parties, warrants interference in the Second Appeal.

45. It is a settled principle of law that suppression of material documents, amounts to fraud upon the Court and any Decree based on such suppression, cannot be sustained. Every litigant must approach the Court with clean hands and cannot be permitted to retain the benefit of a Decree, obtained by concealment of material documents. Learned District Judge has prevented the Appellant from producing the relevant evidence.

46. It was further asserted that other Legal Heirs of late Sh. Amar Singh Pal have not been included as a party, despite Defendant‟s claim that the suit property had been acquired from the joint Hindu Undivided Family funds. An Application under Order I Rule 10 of CPC, filed by one of the sisters of the parties seeking impleadment in the Appeal, on the ground that she had a lawful share in the suit property and lawful determination of ownership in the present case, as it would directly affect her rights, was dismissed without determining the question of impleadment.

47. The omission to implead other Legal Heirs, despite existence of family dispute regarding ownership, has resulted in adjudication of rights of the persons, who were not heard. Such adjudication is contrary to the settled principles governing necessary parties and renders the Judgment unsustainable.

48. It is settled law that the Courts must ensure the presence of all necessary parties, whose rights are likely to be affected by the adjudication. The dismissal of Application under Order I Rule 10 CPC and consequent adjudication of title, in the absence of other Legal Heirs, has resulted in serious procedural irregularity and failure to exercise jurisdiction, thereby giving rise to a substantial question of law, meriting interference by this Court.

49. The Suit is bad for non-joinder of necessary party, for concealment of relevant documents and consideration of GPA dated 26.09.1984 executed jointly in the name of Sh. Amar Singh Pal, father of the parties and Smt. Kanta Devi, Respondent‟s wife. Absence of Smt. Kanta Devi is a fatal legal flaw and no effective Decree could have been passed in her absence.

50. The two Courts gravely erred in treating the Conveyance Deed dated 20.07.1995 registered on 21.07.1995 Ex.PW-1/2, as conclusive proof of Plaintiff‟s exclusive ownership, without adjudicating the Appellant‟s specific and foundational challenge that the Conveyance Deed dated was void and without authority, having been executed purportedly on the strength of GPA dated 26.09.1984.

51. It is well settled that Power of Attorney must be interpreted strictly and any authority to execute a Conveyance or Sale Deed, must be expressly conferred by this document.

52. Reliance is placed on Church of Christ Charitable Trust vs. Ponniamman Educational Trust, (2012) 8 SCC 706 and Suraj Lamp & Industries Private Limited vs. State of Haryana, (2012) 1 SCC 656.

53. Further, there existed serious discrepancies in the chain of documents of title, which nullified the Conveyance Deed executed in favour of the Plaintiff, as not conferring any legally absolute title. Moreover, the Conveyance Deed dated 20.07.1995 had been executed solely by Shri Amar Singh Pal, despite Clause 11 of GPA specifically restricting the authority of the Attorney to enter into an Agreement to Sell and did not authorise execution of any registered Transfer Deed, before the Registrar. Therefore, such Conveyance Deed, so executed by Sh. Amar Singh Pal, had no legal sanctity and did not confer any valid title upon the Plaintiff.

54. It is further stated that there was a serious and bona fide cloud over the Plaintiff‟s title, despite which the Suit for Possession has been decreed, without requiring the Plaintiff to seek a declaration of the title. Even if certain title documents stood in the name of the Plaintiff, the suit property had been acquired from joint fund of Hindu Undivided Family, from the funds of father and both the brothers. The settled principles governing joint family property, co-ownership and acquisition from joint family nucleus, have not been applied correctly.

55. It is further submitted that the two Courts erred in holding that the Appellant / Defendant had failed to establish any joint Hindu Family or joint Family Funds. The entire family had been residing together in Government Accommodation allotted to their father at DMS Colony, West Patel Nagar, sharing a common Ration Card and common Mess and thereafter, shifted together to the suit property, after it was purchased. They had been living jointly for several years, as member of joint family, sharing common residence, common kitchen and pooled their earnings, thereby, established the existence of joint family nucleus.

56. These facts established the joint family nucleus, which was not given any significance by the two Courts and they have misdirected themselves by treating the absence of formal documentary proof, such as joint Bank Account or written record of HUF, as determinative of the issue.

57. Instead of appreciating the evidence in a holistic manner, the Courts ignored the material evidence and had relied on selected portions of the evidence. The testimony of PW-2 Sh. Amar Singh Pal, father of parties has been relied upon, while the testimony of DW-2 Smt. Jallo Devi, mother of parties, has been completely disregarded.

58. It has not been considered that even when there are title documents in the name of one family member, the Property may still constitute Joint Family Property, if acquired from the Joint Family Funds. Once the Joint Family Nucleus was established, the burden shifted on the Plaintiff, who claimed that it was his self-acquired Property from his independent funds.

59. However, the two Courts have wrongly placed the entire burden upon the Appellant, without examining whether the Plaintiff had discharged his burden of proving independent acquisition. It was further asserted that the Plaintiff himself admitted in his cross-examination that the value of Suit Property in the year 1996 was approximately Rs.10,00,000/-, despite which the Suit had been presented before the Court of Civil Judge by stating a substantially lower value of the Property, which was far below the pecuniary limits prescribed for that Court.

60. The Suit was originally instituted for Mandatory Injunction, but subsequently, by Amendment, which was allowed vide Order dated 16.09.1999, the Suit was converted into one for Possession, and the valuation of the Suit Property was required to be determined on the market value of the portion claimed by the Plaintiff.

61. Even if 1/3rd share was allocated to the Plaintiff from the suit property, the value would still come to Rs.3,30,000/-, which was far beyond the jurisdiction of the learned Civil Court. Plaintiff had made a claim on the basis of the Defendant / Appellant being a licensor, which reasoning was circular and legally untenable.

62. It was further asserted that the issue of limitation has also been incorrectly decided by taking the Notice dated 07.06.1996 as the starting point of limitation, while in fact, the suit property had been purchased in the year 1984 and the Appellant had been in possession as a co-owner and not as permissive user. The Suit originally instituted in 1997 was merely for Mandatory Injunction, but only in 1999, it was converted into a Suit for Possession. The statutory period of 12 years from 1984 expired, and by way of an Amendment, a cause of action was introduced, which was already barred by limitation.

63. The Appellant has been in uninterrupted and continuous joint possession since 1984, and therefore, the Suit was barred by limitation, which has not been correctly decided by the learned Trial Court as well as First Appellate Court.

64. The learned First Appellate Court vide Order dated 19.12.2025 in RCA DJ No. 60898/2016 has misapplied settled legal principles regarding the award of mesne profits/damages. It is a settled law that the burden to prove the quantum of mesne profits, lies squarely on the plaintiff. The First Appellate Court specifically noted that no document regarding rate of damages has been filed on record on behalf of appellant/ plaintiff; yet proceeded to award the same on pure conjecture.

65. Ld. First Appellate Court committed a grave error of law by awarding mesne profits against the Appellant, while a comprehensive CS (OS) NO. 218/2013 for partition involving the very same suit property, is pending before this Court.

66. The claim for mesne profits is entirely contingent upon the Respondent successfully proving that the Appellant is an unauthorized licensee. In view of pendency of the Partition suit, the damages decree cannot stand independently on the basis of disputed possession decree.

67. In the absence of strict, documentary proof regarding the prevailing market rental rates during the trial, the only legally permissible course was to pass a preliminary decree and direct a separate, formal inquiry under Order XX Rule 12 CPC, where both parties could lead specific evidence.

68. It was asserted that the reliance placed by the Ld. First Appellate Court on a mere suggestion during the cross examination of PW-1 regarding the capital value of the property which was Rs. 10 Lac in 1997 with respect to framed issue of pecuniary jurisdiction, is fundamentally flawed.

69. Hence, prayer is made that the impugned Judgment dated 18.12.2025 and 19.12.2025 of the learned District Judge be set aside or, in the alternative, the matter may be remanded back for fresh adjudication. Submissions heard and Record Perused.

70. At the outset, it may be noted that this is a second Appeal wherein the scope of appreciation of the evidence and Judgment is limited to Substantial Question of Law. While the Appellant has listed various Substantial Questions of Law, but essentially, they are all on facts.

71. In order to appreciate the contentions raised in the present Appeal, it would be pertinent to refer to the relevant facts and finding of the Learned Civil Judge in Judgment dated 05.09.2012 decreeing the Suit of the Plaintiff/Respondent which has been upheld in the Regular First Appeal by the learned District Judge vide Judgment dated 18.12.2025. Essentially, the Plaintiffs had filed an amended Suit for recovery of Possession and Damages against the Appellant/Defendant Rameshwar Pal, his brother, claiming that he was the exclusive owner of the Suit property in which he permitted his younger brother/Defendant to reside as a Licensee in respect of one room, Toilet and a temporary Kitchen constructed in the courtyard on the Ground Floor. The Plaintiff had got the property converted into Freehold and a Conveyance Deed dated 20.07.1995 was executed in his name, by Delhi Development Authority.

72. The Defendant/Appellant had denied being a Licensee in the Suit property, but had claimed that the Suit property had been purchased from the joint funds as he along with the Plaintiff, had been contributing their earnings to their father who had supported them in the purchase of the Suit property, though in the name of the Plaintiff. He denied being a licensee, but claimed that he was a co-owner having 1/3rd share in the Suit property.

73. Admittedly, the Agreement to Sell dated 28.09.1984 had been executed by Shri C.R. Oberoi through his Attorney Darshan Singh, in favour of the Plaintiff. The GPA dated 28.09.1984 had also been executed by Darshan Singh in the name of Amar Pal Singh, father of the Plaintiff Chander Dass and Smt. Kanta Devi W/o Chander Dass. The Conveyance Deed dated 20.07.1995 Ex.PW1/2 had also been admittedly registered in the name of Shri Chander Dass, the Plaintiff, on it being converted as a freehold.

74. There is no challenge either to the Agreement to Sell or to the Conveyance Deed executed in the name of Chander Dass. The only defence which had been set up by the Appellant in the Written Statement was that the contribution for purchase of the suit property had been made by him as well as the Plaintiff, who used to give their earnings to their father and therefore, even though the property was in the name of Respondent Chander Dass, he had 1/3rd share in the Suit property.

75. It has been explained by PW[1] Chander Dass in his testimony that earlier their father was in a Government job and they all as a family were residing together in the Government accommodation. However, he retired in 1984 after which the Plaintiff purchased this property, and the Plaintiff along with his father shifted to this property. Defendant, who had been working independently, suffered losses and was in dire need, on account of which he was permitted to occupy the suit premises, in the year 1985.

76. These facts find due support from the testimony of the Appellant who stated that he had been doing the DMS Milk Bottle business since 1977, which business he continued till December, 1979. Thereafter, Defendant along with Plaintiff started a business of Peerless Company in which Defendant was a Field Officer, while the Plaintiff was the Special Organiser in the Company.

77. Initially, the income of the Defendant was Rs.500/- per month in 1978, which was raised to more than Rs.3,000/- per month or above from time to time. He claimed that he used to hand over his income to his parents and the Plaintiff. He further deposed that the Plaintiff was having an equal income, which was also being handed over to the parents. He claimed that the entire family was undivided and was residing as a joint family.

78. The reason for claiming that the family was a joint family was that they were residing together as a unit, had a single kitchen and the Ration Card of the entire family was also joint. They were all residing together, and their father was the Head of the family. It is evident from the evidence of the Defendant that the sole basis for claiming that the family was joint was because they were living together and had one Ration Card. However, this is not the concept of a Joint Hindu Family.

79. It would be pertinent to first understand the concept of Joint Hindu family and Hindu Undivided family (HUF). A Joint Hindu Family consists of all persons who lineally descend from the common ancestor and includes their wives and unmarried daughters. They are bound together by the fundamental principle of Sapindaship or family relationship, which is the essential feature of the institution. The cord that knits the members of the family is not property but the relationship of one another as explained in the Commissioner of Income Tax v. Luxminarayan (1935) 59 Bom 618. Moreover, Joint Family Property is one in worship and holds joint assets. After separation of assets, the family ceases to be joint. Mere severance in food and worship is not treated as a separation, as observed in Sri Raghunadha v. Sri Brozo Kishore, 1876 (1) Madras 69.

80. In Haridas v. Devaki Bai, 1926 SCC OnLine Bom 76, it was held that though a joint family status is a result of Birth, the possession of joint property is only an appendage and not prerequisite for the constitution of such family.

81. Bhashyam Ayyangar J. in Sundaranam Maistri v. Harsimbhulu Maistri Another (1902) ILR 25 Madras explained the legal position of Mitakshara doctrine of joint family property, wherein it was held that is founded upon the existence of an undivided family as a corporate body and the possession of the property by such corporate body. The first prerequisite therefore, is the family unity; and the second requisite is the possession of property by it. The conception of a Hindu family is a common male ancestor with his lineal descendants in the male line and so long as that family is undivided, it forms a corporate body, which is purely a creature of law and cannot be created by act of parties save in so far by adoption.

82. The Defendant had asserted that there was a joint ration card to prove a joint family. Reference may be made to the case of Kiran Devi v. Bihar State Sunni Wakf Board, 2021 SCC Online SC 280 wherein the Supreme Court has held that a Hindu Joint family or HUF cannot be presumed to exist based on a Ration Card alone. However, no documentary evidence was produced by the Defendant, to show that the suit property was purchased by the Plaintiff from Joint family funds. Thus, a joint ration card alone cannot prove joint family.

83. The Supreme Court in Commissioner of Wealth Tax, Kanpur vs. Chander Sen (1986) 3 SCC 567 had held that the self-acquired property of a Hindu male does not become joint Hindu family property, merely by reason of his being a member of a joint family.

84. Admittedly, there was no joint family corpus and Shri Amar Pal, who appeared as PW-2, denied the existence of any joint family or that he was a Karta of the family. Rather, from the evidence of the Appellant itself, it emerged that while they may have been residing together, the Plaintiff as well as Defendant were pursuing their own vocation. They may have done the business together for some time, but that in itself was not sufficient to constitute a joint family, as has been held both by the learned Civil Judge, whose finding had been upheld by the learned District Judge. These are purely findings of fact which do not merit any interference.

85. The second aspect of the same argument was that the property had been purchased from HUF. It has been rightly observed by the learned Civil Judge and upheld by the learned District Judge that there was no evidence whatsoever to show that there existed an HUF family or there was a common corpus in the name of HUF or that it was utilized for purchase of the Suit property.

86. It is well settled that a plea of joint Hindu family must be specifically pleaded with full material particulars as to when and how the joint family was in existence, and the burden of proving the same, lies squarely upon the person asserting such claim.

87. In Yudhishter vs. Ashok Kumar, 1987 (1) SCC 204 the Supreme Court held that after coming into force of the Hindu Succession Act, 1956, property inherited under Section 8 does not automatically assume the character of HUF property in the hands of the successor.

88. Building upon the said principle, the Delhi High court in Sunny (Minor) & Anr. vs. Raj Singh & Ors. CS(OS) No.431/2006 held that a party asserting existence of HUF property must specifically plead and prove when and in what manner the HUF came into existence, whether it existed prior to 1956 or was subsequently created by throwing the property into the common hotchpotch, and mere use of expressions such as „ancestral property‟ or „joint family property‟ is insufficient in law.

89. Even if the entire case of the Appellant is accepted that some contribution, though not proved, has been made by him, but that in itself is not sufficient to make him a co-owner in the Suit property. Pertinently, the sale transaction took place in the year 1984, and the Conveyance Deed was executed in the name of the Plaintiff in 1995, and till date the Defendant/Appellant has not filed any Suit claiming the co-ownership or for avoidance of the Conveyance Deed. The learned Civil Judge as well as learned District Judge, have rightly held the Suit property to be the exclusive property of the Plaintiff/Respondent.

90. In this Second Appeal, the Appellant has for the first time tried to challenge the Agreement to Sell and GPA by asserting that the Agreement to Sell had been executed in favour of the Plaintiff by C.R. Oberoi through his Attorney Darshan Singh in favour of the Plaintiff. However, in the GPA executed in the name of Darshan Singh, no Authority had been conveyed by C.R. Oberoi to him to execute any GPA in favour of Amar Pal, the father, who in turn executed the Conveyance Deed in favour of Chander Pal.

91. First and foremost, there were neither the pleadings nor any evidence led in this regard before the learned Civil Judge. Moreover, these contentions were not raised even before the First Appellate Court and have been raised for the first time in the second Appeal.

92. However, the record shows that C.R. Oberoi had executed a GPA in favour of Darshan Singh authorising him to execute the documents for sale, including GPA, Agreement to Sell etc. Darshan Singh, on the basis of this GPA, had further executed the GPA in the name of Amar Pal Singh, who in turn was a party to the execution of Conveyance Deed in favour of the Plaintiff. The ground of challenge firstly, was never raised before the Civil Judge or the District Judge and has been raised for the first time before this Court, which is not proven on record. Moreover, as already noted above, the Conveyance Deed has never been challenged.

93. It is pertinent to refer to Section 27 of the Limitation Act, 1963. It reads as under:

94. It provides that after the expiry of the stipulated period, the party loses her right to agitate its claim as being barred by time. It is only the right to seek legal remedy, which gets extinguished, but not the substantive rights that the parties may otherwise have in the subject matter of the Suit. Section 27 is the only Section, which extinguishes the right in Property if not challenged within the period of limitation.

95. In Ravinder Kaur Grewal & Ors. v. Manjit Kaur & Ors., 2019 SCC OnLine SC 975, the Supreme Court held that Section 27 of the Limitation Act is an exception to the general rule that limitation only bars the remedy; where a person who could challenge a transfer or assert a competing title does not sue within the prescribed period, his right to the property itself stands extinguished and a corresponding substantive right crystallizes in the person in whose favour limitation has run.

96. Likewise, in Karnataka Board of Wakf v. Government of India in Civil Appeal No. 16899 of 1996 explains that once limitation has expired, the earlier owner‟s title is lost and the new right becomes secure, Section 27 of the Limitation Act thus destroying the old right while perfecting the new one.

97. Even if it is accepted that there was some defect in the Agreement to Sell/GPA, it got rectified when the Conveyance Deed was issued in 1995, which has not been challenged till date. The contention raised by the Appellant for the first time in this Second Appeal, is not tenable under the law.

98. Even otherwise, it may be noted that the Defendant has claimed 1/3rd share in the Suit property on the basis of the Conveyance Deed and the Agreement to Sell etc., vide which the property in question was purchased. He himself is basing his title in the suit property on the basis of the same documents. He is therefore, estopped from questioning the validity of the documents, which are the basis of ownership.

99. The learned Civil Judge had rightly observed that neither was there any joint family proved, as also admitted by PW-2 Amar Pal Singh, the father, in his testimony that there existed no joint family and he was never a Karta of the said joint family.

100. The learned Civil Judge has rightly held the Plaintiff to be the owner of the property in view of the Conveyance Deed dated 20.07.1995 Ex. PW1/2, which finding has been upheld by the learned District Judge in the First Appeal. The challenge which is sought to be raised now is essentially on facts which is beyond the scope of the Second Appeal.

101. The Appellant had contended that a Suit for Partition has been filed by one of the sisters in which the Plaintiff and Appellant are also a party. However, merely because another Suit has been filed, cannot have any relevance to the adjudication of the present Suit, which is essentially based on Conveyance Deed in favour of the Plaintiff.

102. Likewise, the Application under Order I Rule 10 CPC had been rightly dismissed as the sisters are not necessary for the present Suit, which was essentially the claim of the Plaintiff against the Defendant/ Appellant, his brother.

103. Considering that the Defendant had come into the property subsequently and had no title documents in his favour, he has been rightly held as a licensee of the Plaintiff. The challenge in the present Regular Second Appeal in this respect is essentially on merit, which is beyond the scope of the Second Appeal.

104. The Plaintiff had also contended that the Suit had not been valued properly for the purpose of Court Fee and jurisdiction. In fact, the value of the Suit property in the year 1996 was approx. 10 lakhs and if the share of the Plaintiff is taken as 1/3rd, then too the value comes to Rs.3,30,000/which was beyond the pecuniary jurisdiction of the Learned Civil Judge.

105. This contention again is without any merit for the simple reason that the basis for seeking possession was that the Appellant had been inducted as licensee and the Mesne Profits/Damages were sought @ Rs.3,000/- per month. The Court Fee payable in such circumstances was the License Fee for 12 months which comes to Rs.36,000/-. The Suit in fact, got valued for Rs.1,00,000/- for the purpose of seeking Possession from the Appellant/Licensee. The Plaintiff had valued the Suit for Mandatory Injunction (as it was filed initially as Rs.300/-) and the Court Fee had been filed of Rs.3,000/- and the market value of the property was taken as Rs.1,20,000/-. In all Rs.1,23,000/- has been paid as Court fee.

106. Since the Suit was for Possession from the Licensee in terms of Section 7(xi)(cc) of the Court Fees Act, it was payable at the License Fee/Damages for 12 months as claimed by the Plaintiff. The Court Fee of Rs.1,20,000/- was duly paid, which was more than the Court Fee that was payable. The objection taken by the Appellant in regard to the pecuniary jurisdiction is without any merit.

107. The learned District Judge rightly considered that the Appellant was in possession of the property as licensee since 01.02.1997 and was, therefore, liable to pay the damages @ Rs.100/- per day till the premises are vacated by the Appellant. It may be noted that there is no escalation considered since 1997. In the circumstances, the assessment of damages @ Rs.100/- per day or Rs.3,000/- per month cannot be termed as non-judicious or conjectural. The finding again is challenged on facts, which is beyond the scope of the Second Appeal.

108. In so far as the challenge to the limitation is concerned, it has been rightly held that the cause of action for filing the Suit seeking Possession arose from the day when the Appellant denied the right of the Plaintiff, which happened when the Notice dated 09.01.1997 for vacating the premises was served upon the Appellant, which he failed to comply. The limitation of 12 years, therefore, started from 09.01.1997. The Suit was filed on 03.03.1997, which was well within the period of limitation.

109. No interference in these findings by the learned Civil Judge, confirmed by the learned District Judge is merited. Conclusion:

110. In view of the aforesaid discussion, there is no merit in the aforesaid two Appeals, which are hereby, dismissed. The pending Applications, if any are disposed of accordingly.

JUDGE MAY 07, 2026