VALMIKI J. MEHTA, J

1. By means of the present appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC), the plaintiff/appellant challenges the impugned judgment and decree of the trial court whereby the suit for possession of the appellant/plaintiff was dismissed with respect to Plot No. 7, Khasra No. 38, Gali No. 1, Aram Park, Shastri Nagar, Delhi admeasuring 100 sq. yards.

2. The case of the appellant/plaintiff was that the sale deed of the subject plot was in his name and the defendant was a trespasser and, therefore, liable to be evicted in the suit for possession. The case of the defendant/respondent was that he had purchased the property pursuant to an agreement to sell dated 28.9.1983 entered into between him and the father of the appellant Sh. Sarda Ram. Further the case was that on the failure of the father of the plaintiff to execute a sale deed, a suit for specific performance was filed and which was ultimately decreed in favour of the respondent and in enforcement of the decree, a sale deed of the suit property was executed in favour of the respondent.

3. The only issue, therefore, which was basically argued before the trial court and also before this Court was/is as to whether the plaintiff was the owner of the subject property and, consequently, his father was incompetent to enter into an agreement to sell dated 28.9.1983 with the defendant/respondent. The trial court framed issues after completion of pleadings on 5.10.1989 and the relevant issues in this regard are Issue Nos. 1,3,5 and 7 which read as under: “1. Whether the plaintiff is owner of property in suit? OPP 3. Whether Sarda Ram was competent to enter into an agreement to sell with the deft. with respect to the property in dispute? OPP

5. Whether the decree passed in the suit by Sh. P.K. Bahari, ADJ “(as his Lordship then was)” is valid and is binding on the plaintiff? 7. Whether Sharda Ram entered into agreement with the deft. with the plaintiff’s consent? If so, its effect?”

4. These issues were dealt with together by the trial court exhaustively from paragraphs 11 to 38 of the judgment. Dealing with the aforesaid aspect of the ownership, the trial court has arrived at the following conclusions:-

(i) That not the plaintiff/appellant but really his father Sarda Ram was the owner of the subject property and the plaintiff was only a benami owner. The father of the plaintiff/appelant had duly executed an agreement to sell dated 28.9.1983 in favour of the respondent/defendant and on his failure to perform his obligation under the Agreement, the respondent filed a suit for specific performance which was ultimately decreed in his favour and thereafter through the Court a sale deed was also executed in favour of the respondent.

(ii) The plaintiff was present when the agreement to sell dated 28.9.1983/was entered into by the father of the plaintiff/appellant with the respondent. This aspect has been held to be proved on account of testimonies of the witnesses of the defendant/respondent. (iii) The suit was in substance an abuse of the process of law because its object was to overcome a final decree for specific performance by which the defendant/respondent had become owner of the property.

(iv) It is not correct to say that the father of the plaintiff was of unsound mind because the so-called unsoundness of mind was shown for a few days, i.e. 15 days, of the year 1955 and whereas the agreement to sell was of the year 1983.

To the above conclusions, I may only add that the proved fact which appears on record is that it is not the case in the pleadings of the appellant/plaintiff or proved by him that his father was having bad relations with the plaintiff/appellant. In my opinion, it was very vital for having pleadings and proof of strained relations between the plaintiff/appellant son and his father Sh. Sarda Ram who executed the agreement to sell dated 28.9.1983 in favour of the respondent because it cannot stand to reason that the father would be ac

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