The burden of proof lies with the party asserting a fact, and the court may rely on documentary evidence and witness testimony to determine the veracity of claims.

VALMIKI J. MEHTA, J.

C.M. Appl. No. 41258/2017 (for exemption)

Exemption allowed, subject to all just exceptions.

The application stands disposed of.

RFA No. 961/2017 and C.M. Appl. No. 41257/2017 (for stay)

1. This Regular First Appeal is filed under Section 96 of the Code of Civil Procedure, 1908 (CPC) impugning the judgment of the trial court dated 1.9.2017 by which the suit filed by the appellants/plaintiffs for permanent injunction and rendition of accounts has been dismissed so far as relief of permanent injunction is concerned. Appellants/plaintiffs had claimed ownership of 80 sq. yards in the property being WZ-35A, Village Naraina, New Delhi. Appellants/plaintiffs claimed to be in possession thereof on account of receiving this 80 sq. yards in an oral partition of the year 2006, and hence permanent injunction was prayed against respondents/defendants disturbing the possession of the appellants/plaintiffs.

2(i). The facts of the case are that admittedly late Sh. Ganga Dass, grand-father of appellant nos. 2 to 4/plaintiff nos. 2 to 4 and father-in-law of appellant no.1/plaintiff no.1, was the owner of four properties as under:-

“(i). CB-150, measuring 200 sq. yds., Ring Road, Naraina;

(ii). WZ-35, measuring 240 sq. yds., village Naraina, Delhi;

(iii). WZ-35A, measuring 260 sq. yds., village Naraina, Delhi;

(iv). WZ-250, measuring 50 sq. yds. Village Naraina, Delhi."

We are only concerned with the property WZ-35A, Village Naraina, New Delhi, alleged as per the plaint to be measuring 260 sq. yards.

(ii) The defendant nos. 1 and 2 in the suit, and who are the respondent nos. 1 and 2 herein, were the main contesting private defendants. Respondent nos. 1 and 2 are the sons of Sh. Ganga Dass. Sh. Ganga Dass as already stated above was the father of the husband of appellant no.1/plaintiff no.1 i.e the husband of the appellant no.1/plaintiff no.1 was the brother of respondent nos. 1 and 2/defendant nos. 1 and 2.

(iii) Appellants/plaintiffs claim that Sh. Ganga Dass during his life time partitioned off his properties and the appellants/plaintiffs received 80 sq. yards of a total of 260 sq. yards in the property no. WZ-35A, Village Naraina, Delhi. The oral partition is pleaded to be of the year 2006. Appellants/plaintiffs claimed to be in possession of 80 sq. yards of property WZ-35A, and hence filed the subject suit to restrain the respondent nos. 1 and 2/defendant nos. 1 and 2 from in any manner encroaching upon the portion of 80 sq. yards of the property WZ-35A claimed to be in the ownership and possession of the appellants/plaintiffs pursuant to the oral partition of the year 2006.

3. Respondent nos. 1 and 2/defendant nos. 1 and 2 contested the suit and pleaded that the property WZ-35A, Village Naraina, Delhi, claimed to be of 260 sq. yards, is in fact only of 186.66 sq. yards and therefore there does not arise an issue of appellants/plaintiffs being given 80 sq. yards out of a total area of 260 sq. yards. It was further the case of the respondent nos. 1 and 2/defendant nos. 1 and 2 that the case of the appellants/plaintiffs of there being an oral family settlement of the yeR 2006 and appellants/plaintiffs being given 80 sq. yards of WZ-35A is a completely false stand. It was also denied that appellants/plaintiffs were in possession of 80 sq. yards of property WZ-35A, Village Naraina, Delhi. Hence, the suit was prayed to be dismissed.

4. After pleadings were complete, the trial court framed the following issues:-

“1. Whether plaintiff is entitled to a decree of permanent injunction as claimed?OPP

2. Whether plaintiff is entitled to a decree of mandatory injunction as claimed? OPP

3. Whether plaintiff is entitled of rendition of accounts as claimed? OPP

4. Relief.”

5. Parties led evidence and leading of evidence is referred to in paras 11 to 13 of the impugned judgment of the trial court and which paras read as under:-

“11. Plaintiffs have examined four witnesses i.e. plaintiff no.1/Smt. Kamla as PW1, Shri Joginder Singh Tanwar as PW2, Ms