VALMIKI J. MEHTA, J.

C.M. Appeal No. 39866/2016 (for exemption)

Exemption allowed, subject to all just exceptions.

The application stands disposed of.

RSA No. 319/2016 and C.M. Appeal No. 39865/2016 (for stay of operation of the Judgment and Decree dated 12.8.2016 under Section 151 CPC)

1. This Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) is filed by the appellant/defendant/son impugning the concurrent Judgments of the courts below; of the Trial Court dated 24.11.2015 and the First Appellate Court dated 12.8.2016; by which the courts below have decreed the suit of the respondent/plaintiff/ father for possession and damages. The suit property is a property admeasuring 170 sq. yards bearing No. D-40, Ganesh Nagar, Pandav Nagar Complex, Delhi-92.

2. The case of the respondent/plaintiff is that the suit property was purchased from the funds provided by the respondent/plaintiff and by title deeds in the name of the respondent/plaintiff. Respondent/plaintiff pleaded that there was never any Hindu Undivided Family (HUF). Respondent/plaintiff on account of failure of the appellant/ defendant to vacate one room on the ground floor of the suit property sent a Legal Notice dated 29.7.2002 calling upon the appellant/defendant to vacate the suit property, but appellant/defendant instead of vacating the property sent a Reply Notice dated 13.8.2002 stating that the entire suit property was purchased in the name of the respondent/plaintiff from the funds of joint Hindu family which were provided by the grandfather of the appellant/defendant, i.e. the father of the respondent/plaintiff and thus appellant/defendant refused to vacate the room in the suit property. Accordingly, the subject suit came to be filed.

3. Appellant/defendant contested the suit by filing his written statement. It was stated that out of 170 sq. yards of the suit property 100 sq. yards were purchased in the year 1983 out of the funds of the appellants/plaintiffs father, i.e. the grandfather of the appellant/ defendant, and thereafter the same was constructed from the joint funds of the defendant and plaintiff. The remaining 70 sq. yards of the property was stated by the appellant/ defendant to have been purchased by the respondent/plaintiff out of the joint funds of the plaintiff and defendant. Appellant/defendant further claimed that he had been helping his father/plaintiff and contributing his entire earnings to the plaintiff. Accordingly, it was prayed that the suit be dismissed.

4. After completion of pleadings on 9.10.2009 the following issues were framed:-

“1. Whether the property No. D 14 (correct No. is D 40), Ganesh Nagar, Pandav Nagar Complex, Delhi 92 was purchased by the plaintiff using ancestral funds and whether the defendant contributed in construction of the suit property? OPD

2. Whether the plaintiff has not valued the suit properly for purpose of court fee and jurisdiction and whether this court has no pecuniary jurisdiction to try the suit? OPD

3. Whether the plaintiff is entitled for the relief of possession? OPP

4. Whether the plaintiff is entitled to recover a sum of Rs.1,08,000/- from the defendant as mesne profits as claimed and whether the plaintiff is entitled for pendent lite and future mesne profits? If yes at what rate? OPP

5. Relief.”

5. The relevant issues which are argued before this Court are issue nos. 1 and 3 as to whether the suit property is owned by the respondent/plaintiff or that the suit property was purchased from the ancestral funds and that whether the appellant/defendant contributed towards construction of the suit property.

6. The courts below have held that no evidence of any worth was led by the appellant/defendant to show that there were funds contributed by the appellant/defendant for either purchase of 70 sq. yards of the plot in question or appellant/defendant had spent funds towards construction on the 100 sq. yards of the property which was first purchased. It is seen that admittedly the