Important Point – Suit for recovery of possession on the basis of prior possession is maintainable against all except true owner.

I.S. Mehta, J.

1. The instant Regular Second Appeal is filed under Section 100 of the Code of Civil Procedure, 1908 against the judgment and decree dated 20.04.2015 passed by the learned Additional District Judge, East, Karkardooma Courts, Delhi in Regular Civil Appeal No. 58 of 2012, wherein the learned ADJ by setting aside the trial Courts order dated 22.03.2012 in suit No. 222/07 allowed the said appeal, directing the appellants/defendants to handover the possession of the suit property to the respondent/plaintiff.

2. Aggrieved by the said order, the Appellant preferred the present regular second appeal on the following grounds:-

a. That there is a substantial ground of law involved in the present appeal which requires the indulgence of this Court.

b. That the learned First Appellate Court failed to consider that there is not a single document on record to show that the respondent/plaintiff was in the possession of the suit property.

c. That as per Section 101 of the Indian Evidence Act, 1872 the onus of proving the ownership of 100 sq. yards of the suit property and its right and entitlement rests with the respondent/plaintiff.

d. That the impugned order was passed without any merits and was based on conjectures and surmises.

3. The brief facts of the present case stated are that the respondent/plaintiff had filed a suit for declaration, possession, permanent injunction and damages qua against the appellants/defendants, i.e. (i) Dina Nath Pandey, (ii) Raj Kumar Pandey, (iii) Smt. Sharmila Pandey, alleging therein that the respondent/plaintiff had purchased a plot admeasuring 100 square yards, bearing Khasra No. 40/5, situated at Gali No.3, Main 25 Fts. Road, Indraprastha Colony, Part-I, Amrit Vihar, Burari, Delhi from one Baccha Ram, s/o Sh. Jagan Nath vide GPA executed on 29.02.1992.

4. The respondent/plaintiff in its plaint at para No.3 has stated that the appellant/defendant No.1 Dina Nath Pandey is in his near relation and the appellant/defendant No.2 Raj Kumar Pandey is the son of the appellant/defendant No.1 and the appellant/defendant No.3 Sharmila Pandey is the daughter-in-law of the appellant/defendant No.1 and they all were having usual visiting terms at the house of the respondent/plaintiff.

5. It is further alleged in the plaint at para No.4 that in the month of September, 1999, the appellant/defendant No.1 along with appellants/defendants No.2 & 3 came to the house of respondent/plaintiff and approached him to adjust the appellants/defendants No.2 & 3 in his house for a short period till they arrange residential accommodation for themselves. Consequently, on their request they were accommodated and a licence was created by the respondent/plaintiff in favour of the appellants/defendants No.2 & 3.

6. After the appellants/defendants No.2 & 3 purchased a plot for themselves, the respondent/plaintiff made several requests to the appellants/defendants to shift/vacate his property but when the appellants/defendants No.2 & 3 failed to vacate the said property despite the requests of the respondent/plaintiff, he made a complaint on 26.02.2009 at Police Station Timar Pur and thereafter the appellants/defendants No.2 & 3 gave assurance in presence of respectable persons to vacate the said house within 2-3 months. However, even after 2-3 months the appellants/defendants No.2 & 3 failed to vacate the said house and refused to vacate the house under the pretext that the appellant/defendant No.2 has got prepared some documents and had transferred the property in the name of his wife, i.e. appellant/defendant No.3, and later in the month of March, 2004 the appellant/defendant No.2 instituted a false case against the respondent/plaintiff.

7. Further, the appellant/defendant No.2 agreed to handover the peaceful possession of the suit property on 15.10.2004 in presence of the respectable persons. But the appellants/defendants despite repeated given assurance failed to vacate the said house. Consequently, the respondent/plaintiff