The main legal point established in the judgment is the requirement to prove adverse possession and family settlements in property disputes, as well as the applicability of the Benami Transactions (Prohibition) Act, 1988.

G.S. Sistani, J.

1. The Plaintiff has filed the present suit for possession, damages and mesne profits. The parties are real brothers. During the pendency of the suit, the defendant (Sh. Sushil Kumar Sethi), died on 6.12.2010. His legal heirs being son and daughter have been brought on record. The subject matter of the present suit is an immovable property known by the number as A-8, Vishal Enclave, New Delhi (hereinafter referred to as "the suit property"). As per the plaint, plaintiff is the absolute owner of the suit property; which was taken on lease from the Municipal Corporation of Delhi vide perpetual lease dated 11.5.1971. It is also the case of the plaintiff that thereafter a three storey building was constructed over the plot by him by his funds and resources. The property was converted into free-hold in favour of the plaintiff vide conveyance deed dated 5.1.2011. The plaintiff paid all the expenses from his own account for conversion of the property into free hold and thus, claims to be the absolute owner of the suit property, which according to him is his self-acquired property.

2. It is also the case of the plaintiff that the defendant, who is the elder brother of the plaintiff, was allowed to use and occupy the first floor and two rooms and one bath room on the second floor in the suit property out of natural love and affection. The plaintiff had never charged any consideration for use and occupation of the suit property from the defendant. The plaintiff thereafter revoked the licence so granted orally in the month of September, 2006. The defendant sought 15 days time to shift, remove all the belongings and hand over physical possession to the plaintiff, but despite the assurance so given, the property was not vacated, resultantly a legal notice dated 26.10.2006 was issued to the defendant by registered AD and certificate of posting.

3. Despite service, the defendant neither replied to the notice nor complied with the same. As per the notice, the licence with respect to the suit property was revoked and 7 days time was granted to the defendant to shift and remove all his belongings and hand over vacant possession. Since the defendant did not comply with the same, the present suit was instituted. According to the plaint, the possession of the defendant is unauthorized w.e.f. 4.11.2006, hence, the defendant is liable to pay damages and mesne profit for unauthorized use and occupation of the suit property.

4. It has further been averred in the plaint that in case the suit property was let out in the open market it would fetch rent @ Rs. 30,000/- per month and accordingly, the plaintiff has claimed Rs. 1,000/- per day as use and occupation charges. The plaintiff has further claimed damages and mesne profit, pendente lite and future till the handing over of the vacant possession of the suit property at the said rate or such other rates at which the court may consider after holding an enquiry under Order 20, Rule 12 of the Code of Civil Procedure.

5. The defendant has filed his written statement and also set up a counter claim. In the written statement, the execution of the lease deed dated 11.5.1971 was not disputed, but it was disputed and denied that the plaintiff was the owner of the suit property. It has also been denied that the plaintiff built a three storey house on the said plot. According to the written statement, the ground floor of property was constructed out of the joint funds of the plaintiff and the defendant. The first and the second floor were got constructed by the defendant solely out of his funds pursuant to a family arrangement whereby the first and the second floor would belong to the defendant. It has also been denied that the entire sum for getting the property converted from lease-hold to free-hold was paid by the plaintiff alone. It is the claim of the defendant that the first and the second floor of the suit property fell to the share of the defendant by virtue of a family arrangement,