Valmiki J. Mehta, J.

1. The challenge by means of this Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 is to the impugned judgment and decree dated 20.11.2010. By the impugned judgment and decree, the suit of the respondent/plaintiff has been decreed. Though the decree grants various forms of mandatory and perpetual injunctions, in effect, the relief of possession of the suit property has been granted to the respondent/plaintiff. The suit has been decreed on an application of the respondent/plaintiff under Order 12 Rule 6 CPC.

2. The suit has been decreed relying upon Section 44 of the Transfer of Property Act, 1882 by holding that the property being N-47, Panchsheel Park, New Delhi was an undivided dwelling-house of the family and since the appellant/defendant No. 2 was a stranger, he had been wrongfully inducted into possession of the second floor of the property along with certain other rights by the brother/Sh. Prem Kumar Dewan of the respondent/plaintiff, Ms. Nargis Khanna. The decision in the present appeal will therefore revolve around the meaning of the expression "dwelling-house" as found in Section 44 of the Transfer of Property Act, 1882. Before however, we go to the meaning of the expression "dwelling-house" it would be necessary to refer to the relevant facts of the case.

3. The subject property No. N-47, Panchsheel Park, New Delhi is constructed on a plot admeasuring 800 square yards and which was originally owned by late Sh. Jagan Gopal Dewan, father of the respondent/plaintiff. The perpetual sub-lease rights in the property were purchased by Sh.Jagan Gopal Dewan from the Delhi Development Authority. Sh. Jagan Gopal Dewan died on 27.2.2001. He bequeathed the subject property to his widow, Smt. Amrit Kala Dewan by his last Will and Testament dated 9.12.1972. Smt. Amrit Kala Dewan as an owner of the property during her lifetime let out the first floor of the property to a tenant, M/s. Win-Medicare Pvt. Ltd. Smt. Amrit Kala Dewan expired on 12.11.2005 leaving behind various properties including the subject property. Smt. Amrit Kala Dewan by her last Will and Testament dated 6.10.2004 bequeathed the half share each in the subject property to her daughter/plaintiff and her son Sh. Prem Kumar Dewan. As per the paragraph 7 of the plaint, the respondent/plaintiff was in possession of the ground floor, garage, servant quarter, rear courtyard, front lawn and uninterrupted user of the drive ways of the subject premises. The second floor of the subject property was in possession of the brother/Sh. Prem Kumar Dewan and who by a registered sale deed dated 23.6.2008 sold and transferred his 50% undivided interest in the property and also the possession of the second floor of the subject property to both the defendants in the suit. The defendant No. 1 thereafter transferred his interest in the property to the defendant No. 2/appellant. Sh. Prem Kumar Dewan since gave the possession of the second floor of the property to the defendants in the suit along with the other rights inasmuch as the same became the genesis of the dispute resulting in filing of the suit. The subject suit thus came to be filed by the respondent/plaintiff on the basis of Section 44 of the Transfer of Property Act, 1882 by stating that since the property was an undivided dwelling-house, the defendants in the suit had no right to enter into possession, and possession of which by means of different reliefs of perpetual and mandatory injunction was prayed for by the respondent/plaintiff and against the defendants.

4. By the impugned judgment and decree, the Trial Court has held that since admittedly there was no partition of the subject property, consequently, the property was an undivided property. It was further held that the subject property was a "dwelling-house" within the meaning of the expression in Section 44 of the Transfer of Property Act, 1882 and therefore it was held that the defendants had come into illegal possession of the