S. Ravindra Bhat, J.

1. This plaintiffs' appeal impugns the judgment and order of a learned Single Judge dated 12.10.2009 by which CS (OS) 941/2002, a suit under Section 6 of the Specific Relief Act, 1963 ("the Act"), was dismissed. The parties shall be referred to in the course of judgment by the nomenclature assigned to them in the impugned judgment.

2. The plaintiffs are the brother and sisters of late M.N. Lalwani, who lived in R-791, New Rajendra Nagar, New Delhi, ("the suit property"). They alleged that during his lifetime, on 10.01.2002, late Sh. M.N. Lalwani accompanied them to Mumbai as he was gravely ill and at that time the keys of the suit property were handed over to them. Sh. M.N. Lalwani's wife had predeceased him on 26.12.2001. He died on 24.02.2002 in Mumbai. It is claimed that after his death the physical possession of the property was with the plaintiffs till the defendants dispossessed them on 18.04.2002. It is alleged that on the latter date, the defendants went to the suit premises with "some hired persons", a locksmith and changed the locks of the suit property and dispossessed the plaintiffs without their consent. The plaintiffs also claimed that complaints were lodged with the concerned police authorities and that the defendants, despite repeated requests, did not hand back possession of the suit property.

3. The defendants are the widow and children of late Sh. P.N. Lalwani, the brother of late Sh. M.N. Lalwani, and the plaintiffs. The written statement alleged that the said Sh. P.N. Lalwani was working with the Central Public Works Department (CPWD) and was posted in New Delhi till 1960 and had been allotted, pursuant to his application, the suit property in a draw of lots, on 07.08.1954, for which he had deposited amounts from his own accounts. The defendants also relied upon a perpetual lease granted in favour of late Sh. P.N. Lalwani dated 28.12.1961 with effect from 07.08.1954 and that Sh. P.N. Lalwani started residing in the suit property in 1964 and thereafter upon his marriage in 1967 he lived with the fourth defendant, i.e. his wife. Upon the death of late Sh. P.N. Lalwani on 02.02.1980, the fourth defendant, his widow, was put to considerable difficulty. The written statement went on to allege that Sh. M.N. Lalwani perpetrated some fraudulent acts upon the fourth defendant and started relying upon an affidavit and Power of Attorney which allegedly resulted in his (Sh. M.N. Lalwani) being treated as owner of the property. It was contended in the written statement that Sh. M.N. Lalwani stayed in the suit property during the period of his posting on the permission of Sh. P.N. Lalwani, the owner of the property and that there were two sets of keys of the suit property--one with Sh. M.N. Lalwani and the other set was being retained by Sh. P.N. Lalwani during his lifetime and after his death, by Defendant No. 4. As stated above, Sh. P.N. Lalwani used to stay in the suit property during his posting in Delhi and thus kept with him the second set of keys. "It is totally incorrect and vehemently denied that Sh. M.N. Lalwani handed-over the keys of the suit property to the plaintiffs on 10.01.2002 or at any time after that.

4. Apparently, the plaintiffs had initially filed a suit for partition [CS (OS) 872/2002]. This partition suit was thereafter withdrawn and the suit for possession under Section 6 of the Act was filed subsequently. On 04.03.2008, following issues were framed for consideration :

1. Whether the plaintiffs were given actual physical possession of the suit property by late Shri M.N. Lalwani on 10.1.2002 and whether the plaintiffs were in settled actual physical possession of the suit property on or after the death of Shri M.N. Lalwani on 24.2.2002. If so, the effect thereof? (OPP).

2. Whether the plaintiffs were dispossessed by the defendants on 18.4.2002, otherwise than in the due course of law? (OPP).

3. Whether the plaint is liable to be rejected on account of deficiency of Court fe