VIPIN SANGHI, J.

Caveat No.474/2015

1. Since the caveator has put in appearance, the caveat stands discharged.

C.M. No. 8633/2015

2. Exemption allowed, subject to all just exceptions.

3. The application stands disposed of.

C.M. No. 8634/2015

4. This application has been filed to seek condonation of five days delay in filing the present appeal.

5. Subject to all just exceptions, the application is allowed. The delay of five days in filing the present appeal stands condoned.

RSA 183/2015 and C.M. Nos.8631-32/2015

6. This is a regular second appeal under Section 100 CPC to assail the judgment and decree dated 15.12.2014 passed by Sh. Lalit Kumar, ADJ, Saket Courts, New Delhi in RCA No.30/2013.

7. The respondent plaintiff had preferred the suit for possession against the appellant defendant. The parties are siblings, and are both sons of late Sh.S.N. Khera. It is not in dispute that late Sh.S.N. Khera was the owner of the suit property being E-1/207-221, Lajpat Nagar-I, New Delhi – 110024, admeasuring 200 sq.yds.

8. Late Sh.S.N. Khera executed a registered Will dated 11.03.1999 qua the suit property in favour of the respondent/ plaintiff, and disowned the appellant/ defendant from his movable and immovable properties by virtue of a public notice dated 03.12.2000 published in the column of Daily “Pratap” in vernacular language. On the demise of late Sh.S.N. Khera on 09.01.2001, the respondent/ plaintiff claimed to have become absolute owner of the suit property. The respondent plaintiff preferred a probate proceeding in respect of the said registered Will, and Probate was granted on 21.08.2008 by Sh. Ravinder Dudeja, ADJ and the Letters of Administration were granted by the then District Judge Sh.V.P. Vaish, in favour of the respondent plaintiff. On the strength of the said Probate and Letters of Administration, the respondent plaintiff preferred the suit for possession.

9. The issues were framed by Trial Court on 11.02.2004 and the matter was adjourned for plaintiff’s evidence. The plaintiff’s evidence was led and closed on 10.08.2004 and thereafter, the matter was adjourned for defendant’s evidence. But the defendant failed to adduce any evidence. On 29.09.2004, the defendant’s evidence was closed.

10. The defendant then moved an application under Order XVIII Rule 17 CPC, which was allowed by the Trial Court on 23.07.2009, and the defendant was granted one more opportunity to lead his evidence. Pertinently, in the meantime, the defendant/ appellant also moved an application under Order VI Rule 17 CPC for amendment of the written statement which was, however, dismissed on 13.07.2011. The defendant filed affidavits by way of evidence, but did not produce his witnesses for cross-examination before the Trial court despite opportunity being granted. Ultimately, the defendant’s evidence was again closed by the Trial Court on 07.01.2012. No steps to assail the order dated 07.01.2012 were taken by the appellant defendant during the pendency of the suit. On the basis of the evidence led by the plaintiff, the suit was decreed by the Trial Court.

11. Before the First Appellate Court, in RCA No.30/2013, the appellant defendant moved an application under Order XLI Rule 27 CPC to lead additional evidence. According to the appellant, the suit property was an ancestral property and could not have been willed by the late father. It was also argued that the suit property being a leased property from the L&DO, the same could not be willed without prior permission from the L&DO. According to the appellant, the respondent/ plaintiff had fabricated documents, including a General Power of Attorney, Will, and Agreement to Gift, and these documents were not produced before the Trial Court. The appellant claimed before the First Appellate Court that he had become aware of the fact that the said documents had been executed on the stamp paper not procured by late Sh.S.N. Khera or the plaintiff/ respondent on making an application under the Right