The importance of evidence on record in establishing ownership of the property.

VALMIKI J. MEHTA, J.

1. This Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) is filed by the plaintiff (since deceased and now represented by his legal heir), impugning the concurrent judgments of the courts below; of the Trial Court dated 22.5.2010 and the First Appellate Court dated 2.11.2016; dismissing the suit for possession and mandatory injunction filed by the appellant/plaintiff with respect to the suit property being plot no.A-95, Mandoli Road, Nathu Colony, Delhi.

2. The facts of the case are that the appellant/plaintiff claimed that he was the owner of the suit property since December 1964 in terms of the registered sale deed dated 21.12.1964. It was further pleaded in the plaint that the appellant/plaintiff was residing at Khari Baoli, Delhi at the time of purchase of the suit property and the appellant/plaintiff thereafter had shifted to Lucknow. When the appellant/plaintiff came to Delhi in December 1977 the plot was lying vacant but in March 1978 it was found that the half portion of the plot was occupied by one Mr. M.I.K. Bhasani and against whom the suit for possession was filed. During the pendency of the suit of the appellant/plaintiff against Mr. M.I.K. Bhasani it came to the appellant’s/plaintiff’s notice that the respondent no.1/defendant no.1 has filed the suit for injunction against Mr. M.I.K. Bhasani restraining Mr. M.I.K. Bhasani from dispossessing the respondent no.1/defendant no.1 from a portion of the plot admeasuring 50 sq. yds. Appellant/plaintiff moved an application under Order I Rule 10 CPC in the suit filed by the respondent no.1/defendant no.1 but the same was dismissed. The subject suit hence came to be filed for possession and injunction against the respondent no.1/defendant no.1.

3. Respondents/defendants contested the suit and pleaded that the suit property was not owned by the appellant/plaintiff and which suit property was in occupation and possession of the respondents/defendants. All the contents of the suit plaint were denied.

4. Originally, the suit was dismissed by the trial court vide its judgment dated 17.4.1998. In an appeal against the said judgment the first appellate court set aside the judgment and decree vide its order dated 1.4.2003 by framing the additional issue as to whether the suit property forms part of khasra no. 988/791/683, as was the case of the appellant/plaintiff or the property falls in khasra no. 702 of Village Saboli, Illaka, Shahdara, Delhi. The remand order of the first appellate court was taken in an appeal to this Court but that appeal was dismissed and hence the suit had to be decided afresh after evidence to be led on the additional issue framed by the first appellate court vide its order dated 1.4.2003.

5. Evidence was thereafter led by the parties and these aspects are noted in paras 18 to 21 of the judgment of the first appellate court and which paras read as under:-

“18. To prove this issue, Shri Rajiv Sharma has been examined as CW1, who was working as Kanoongo at that time. His report is Ex.CW1/1. This witness has not been cross examined by the plaintiffs or the defendants, as he was examined as Court witness.

19. PW2 Shri Engine Kujur is also kanoongo. Demarcation, as well as, Aksizra were prepared by him, which is Ex.PW2/2. According to this witness, the suit property is part of khasra no. 988/791/683 of village Saboli, Delhi. This witness has been cross examined at length on behalf of the defendants. In the cross examination this witness has admitted that the suit property constitute part of khasra no. 683, which has been mentioned in the Aksh Sajra.

20. PW3 is Kishan Arora, SDM, Seemapuri. He has produced the Khasra no. 988/791/663/1/2, which is recorded in the name of Bharta and Nathu. Photocopy of the record is Ex.PW3/1 and Ex.PW3/2.

21. DW1 Shri Vir Chand was examined and cross examined.”

6. Trial court in terms of the evidence led held by its impugned judgment dated 22.5.2010 that as per the demarcation