The importance of documentary evidence and preponderance of probability in civil suits to establish ownership and possession rights.

VALMIKI J. MEHTA, J.

1. This Regular Second Appeal is filed under Section 100 of the Code of Civil Procedure, 1908 (CPC) by the defendant against the Judgment of the First Appellate Court dated 2.5.2015 whereby the First Appellate Court set aside the Judgment of the Trial Court dated 9.9.2014 dismissing the suit of the respondent/plaintiff for declaration, possession, etc and accordingly decreed the suit of the respondent/plaintiff for possession with respect to the suit property comprising of 100 sq. yards bearing No. AT/48 Baljeet Nagar, New Delhi.

2. The facts as pleaded by the respondent/plaintiff were that the suit property was purchased by him in terms of Power of Attorneys dated 27.8.1962 and 20.9.1962 from one Smt. Nandu, wife of Sh. Nandan and mother of minor son Sh. Balbir Singh, the minor son Sh. Balbir Singh being the owner of the suit property. The case of the respondent/plaintiff further is that the appellant/defendant is the younger son of respondent”s/plaintiff”s sister Smt. Indira Rani. Smt. Indira Rani was living in Meerut and wanted to shift to Delhi on account of illness of her husband, i.e the father of the appellant/defendant, and the respondent/plaintiff thus allowed his sister”s family to stay in the suit property. The brother-in-law of the respondent/plaintiff died in the year 1993 and respondent/plaintiff thereafter asked his sister to vacate the premises as her elder son was earning. After repeated requests the sister along with her elder son Sh. Krishan Lal Sethi vacated the suit property, but the appellant/defendant being the younger son refused to vacate the suit property. Respondent/plaintiff hence filed this suit for declaration and possession against the younger son, namely, Sh. Rajesh Sethi the appellant/defendant.

3. Appellant/defendant contested the suit and pleaded that respondent/plaintiff was not the owner of the suit property but the owner of the suit property was the father of the appellant/defendant i.e, the brother-in-law of the respondent/plaintiff. It is argued that on account of family reasons the documentation pertaining to house tax and water bills were got executed of the suit property in the name of the respondent/plaintiff. Suit was thus prayed to be dismissed.

4. Five issues were framed by the trial court and which read as under:-

“(1) Whether the suit has not been properly valued for the purpose of court fees and jurisdiction and the suit is barred by pecuniary jurisdiction" OPD

(2) Whether the plaintiff is entitled for the relief of declaration, as prayed' OPP

(3) Whether the plaintiff is entitled for relief of possession, as prayed' OPP

(4) Whether the plaintiff is entitled for relief of permanent injunction, as prayed' OPP

(5) Relief.”

5. Trial court decided the issues on merits in favour of the appellant/defendant and against the respondent/plaintiff and held that the respondent/plaintiff was not the owner of the suit property and hence not entitled to the reliefs of declaration and possession. The appellate court while discussing issue nos. 2 and 3 in paragraphs 9 to 12 of the impugned judgment however has held that though the respondent/plaintiff has failed to prove the ownership of the suit property, respondent/plaintiff has a better title to possession of the suit property than the appellant/defendant and therefore the respondent/plaintiff was entitled to the decree for possession. These paragraphs 9 to 12 of the judgment of the first appellate court in favour of the respondent/plaintiff read as under:-

“9. Issue no. 2 & 3 :- The plaintiff has sought declaration with respect to his ownership regarding the property in question which he claimed to have purchased in the year 1962 from one Sh. Balbir Singh S/o Smt. Nandu and in support of said contention relied upon Ex.PW1/1 as document of his title to the suit property.

10. Based upon the claim of ownership by the plaintiff, he sought possession of the suit premises from the defendant. It was claimed by the plaintiff that