VALMIKI J. MEHTA, J

1. This Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) is filed by the appellants/defendant against the concurrent Judgments of the courts below; of the Trial Court dated 9.12.1988 and the First Appellate Court dated 10.5.2016; by which the suit for possession filed by the respondent/plaintiff/trust has been decreed. The original defendant in the suit Sh. Ami Lal expired during the pendency of the proceedings and he has been substituted by his legal heirs, who are the present appellants.

2(i) The facts of the case are that the respondent/plaintiff became owner of the suit property viz a plot of land admeasuring 1450 sq. yds. situated at Jamrudpur, Greater Kailash, New Delhi under a Lease Deed dated 21.1.1981 executed by the President of India. This lease deed has been proved and exhibited as Ex.PW1/4. There was earlier litigation filed by the original defendant Sh. Ami Lal against the respondent/plaintiff claiming easementary rights with respect to the disputed portion of the plot in ownership of respondent/plaintiff and which suit no.359/1977 after contest was dismissed by the Judgment dated 29.10.1979. The present suit pertains to encroachment of a part of the property which is the subject matter of the Lease Deed dated 21.1.1981, and which disputed portion is shown in red colour in the site plan Ex.PW1/5 by the trial court having an area of 1877 sq feet. The subject suit is filed for possession with respect to the encroached area shown in red colour in the site plan Ex.PW1/5.

(ii) The case of the defendant, now represented by the appellants, was that there is encroachment on two sides of the plot belonging to the respondent/plaintiff but the defendant is not guilty of encroachment. One side is the back side of the property of respondent/plaintiff and another is the side which is seen as the right side when the plan is looked in the suit file and which are shown with reference to sides B and A respectively in the site plan Ex.PW1/5. The site plan Ex.PW1/5 was not filed along with the present appeal, but, a copy of the site plan Ex.PW1/5 has been handed over in the Court by the counsel for the appellants during the course of hearing. The defence of the defendant is best understood by reference to preliminary objection no.6 and reply on merits para 6 and which paras read as under:-

“Preliminary Objection

6. That the suit is bad for non-joinder of the parties since the alleged encroachment is not made by the defendant on two sides. The land on two sides of the plot belong to different persons of the defendant’s family. As such the suit be dismissed with costs.

Reply on merits

6. Para No.6 of the plaint is wrong and vehemently denied. The defendant has not encroached upon any land belonging to the plaintiff. It is clear from the para that the plaintiff has not intentionally not given measurements. However, on two sides, of the plot of the plaintiff, the defendant had his property which is jointly inherited by the defendant along with his brother which has since been partitioned and as perused from the site plan, the defendant is only at one side of the said plot of the plaintiff. The site plan given by the plaintiff is wrong. On the other side, where the alleged encroachment has been given, the defendant has nothing to do as the said quarters are not owned by the defendant which are situated on the land inherited by the brother of the plaintiff, which abuts the boundary wall of the plaintiff. In such circumstances, there was no question of the plaintiff asking the defendant to vacate any portion. The construction of the defendant is an old one and is in existence for the last more than 40/50 years. The defendant has no unauthorized and illegal possession any where under him.” (underlining added)

(iii) A reading of these paras of written statement shows that the appellants/defendant do not claim any rights with respect to the portion shown on the side as A and which is als