The central legal point established is the admissibility of an earlier judgment as evidence of title and the application of relevant provisions of the Evidence Act to establish ownership.

VALMIKI J. MEHTA, J.

C.M. No.25551/2017 (exemption)

1. Exemption allowed subject to just exceptions.

C.M. stands disposed of.

C.M. No.25552/2017 (for condonation of delay)

2. For the reasons stated in the application, delay of 959 days in filing the appeal is condoned and this is especially for the reason that the sole defendant in the suit did not appear, did not cross-examine the witnesses of the appellants/plaintiffs and nor lead evidence, and as is noted by the trial court in paras 4 and 5 of the judgment of the trial court. Thus once the respondent/defendant was ex-parte there is no prejudice caused to him by condoning the delay.

This application is therefore allowed and delay in filing the appeal is condoned.

RFA No.638/2017 and C.M. No.25550/2017 (stay)

3. This Regular First Appeal under Section 96 of Code of Civil Procedure, 1908 (CPC) is filed by the appellants/plaintiffs impugning the judgment of the trial court dated 27.8.2014. As already stated above, since the defendant in the suit was ex-parte, and he did not lead evidence, there is hence no need of issuing any notice in the appeal to the respondent/defendant.

4. The facts of the case are that the appellants/plaintiffs filed the subject suit for partition and injunction pleading that the suit property was originally owned by Sh. Ladhu Ram, the grandfather of the parties. The suit property is the property no. 5348, Gali No.68, Reghar Pura, Karol Bagh, New Delhi-110005 built on a plot of 75 sq. yds. It was pleaded by the appellants/plaintiffs that Sh. Ladhu Ram by his Will dated 15.6.1957 bequeathed his property in favour of his son Sh. Hira Lal and life interest in the property to his widow Smt. Amari Devi. It is pleaded that after the death of Smt. Amari Devi, the plaintiffs and defendant, who are the children of late Sh. Hira Lal, have became co-owners of the suit property and hence the suit for partition be decreed with respect to the suit property.

5. As already stated above, the sole defendant in the suit did not put in appearance, did not cross-examine the witnesses of the appellants/plaintiffs and also did not lead evidence. In any case, by decreeing of the suit, no prejudice is caused to the respondent/defendant because respondent/defendant on grant of the partition decree will in fact be held entitled to 1/3rd share in the suit property.

6. The court below has dismissed the suit by observing that the appellants/plaintiffs failed to file any documents to show that Sh. Hira Lal was the owner of the suit property. This is so observed in paras 4 to 8 of the judgment of the trial court and which paras read as under :-

“4. To prove his case, plaintiff examined himself as PW-1 and tendered his evidence by way of affidavit Ex.PW1/1. He further relied upon document i.e. site plan exhibited as Ex.PW1/A, death certificate of Sh. Hira Lal exhibited as Ex.1/C, portion shown in green colour in site plan as Ex.PW1/D. There is no document on the record which is exhibited as Ex.PW1/B. Defendant was given opportunity to cross examine PW-1. However, Defendant did not appear despite repeated opportunities. Therefore, by order dated 27.05.2014 opportunity for cross examination by defendant to PW-1 stood forfeited and in terms of the statement made by ld. counsel for the plaintiff, P.E. was closed on the same day.

5. On 16.07.2014 this court observed that despite repeated calls none appeared on behalf of the defendant and finally, by order dated 17.07.2014 D.E. was also closed as defendant did not come forward to lead evidence.

6. I have gone through the entire records of the case including pleadings of the parties.

7. Since in this case plaintiff has not brought any document pertaining to the possession and title qua the suit property and as he only brought site plan and death certificate of his late father Sh. Hira Lal which are insufficient to prove the title, rights qua the suit property of the plaintiff. Plaintiff has also not proved any Will executed in favour of Sh. Hira Lal