Shiv Narayan Dhingra, J.

1. Plaintiff Brij Lal filed a suit for possession, mandatory injunction and recovery of damages against the defendants alleging therein that the plaintiff was owner and landlord of property bearing no. 414 (old No. 11-12), Ward No. 18 Kashmere Bagh, Kishan Ganj, Delhi as he had purchased the property from Sh. Ashok Kumar s/o Sita Ram vide registered sale deed dated 5th December, 1991. Sh. Ashok Kumar was beneficiary under a Will executed by late Sahib Ditta Mal, the original owner and the landlord of the property. The plaintiff stated that Sahib Ditta Mal, during his lifetime had instituted an Eviction Petition No. E-9/84 against the defendant. However, the learned ARC dismissed the petition vide order dated 3rd February, 1992 on the ground that letting in this case was in respect of open land and the Court of Rent Controller had no jurisdiction.

2. Another petition filed by Sahib Ditta Mal against the defendants was dismissed in default. The plaintiff pleaded since letting was held in respect of open land, only Civil Court had jurisdiction so a Civil Suit was filed for possession and claiming damages from the defendants.

3. The defendants no. 2 and 3 filed written statement and stated as under:

The true facts are that the property was originally owned by Sh. Mohammad Siddique Batlla who had leased out to the defendant no. 1. Thereafter property was transferred to Sh. Goddar Mal who had also admitted defendant no. 1 as his lessee in the year 1957. The lease in respect of plot was a perpetual lease and defendant no. 1 with consent of Goddar Mal raised superstructure at his own costs and expenses. Thereafter, the property was inherited by Sh. Sahib Ditta Mal and Sh. Sita Ram from their father Goddar Mal. Sh. Sahib Ditta Mal was not exclusive owner of the property but he and Sh. Sita Ram were the joint owners and both of them jointly filed the petition under Section 14(1)(e) and 14(1)(b) of DRC Act and these petitions were dismissed.

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Sh. Sahib Ditta Mal had no right to execute any Will in favour of Sh. Ashok as he was not the exclusive owner of the suit property. The sale deed dated 5th December, 1991 executed by Sh. Ashok Kumar was null and void.

.4. The defendants in para 2 of the written statement again reiterated the facts as under:

The true facts are that in the year 1982, defendant no. 1 with consent of Sh. Sahib Ditta Mal, sold superstructure built by him to defendant no. 2 and transferred the leasehold rights in the plot to defendant no. 2, and as such defendant no. 2 stepped into the shoes of the defendant no. 1. The Eviction Petition under Section 41(1)(e) was filed jointly by Sh. Sahib Ditta Mal and Sh. Sita Ram claiming themselves to be the joint owners.

5. Defendants no. 2 and 3 also claimed themselves to be owners in possession of the premises bearing no. 414, Kashmere Bagh, built over land measuring 35 sq.yds. Defendants no. 2 and 3 are father and son and took the stand that defendant no. 1 had constructed a superstructure with his own expenses with consent of Sh. Goddar Mal, father of Sahib Ditta Mal and Sita Ram.

6. The written statement was filed by the defendants in November, 1998. When the case was at the stage of evidence and plaintiffs evidence had concluded and defendants evidence was under progress, the defendant made an application in 2001 under Order 6 Rule 17 CPC for amendment of written statement and in this application, defendants wanted to take a plea that in first week of January, 2001, a survey was conducted by DDA(Slum) and it came to the knowledge of defendants no. 2 and 3 that the property in their possession was bearing no. 413, Kashmere Bagh and the property belonged to DDA(Slum), who was absolute and exclusive owners of the property. So in the amended written statement defendants no. 2 and 3 wanted to take a plea that plaintiff had got no right whatsoever to file suit for possession and recovery of damages and mesne profits as plaintiff was n