JUDGMENT

Valmiki J. Mehta, J. (Oral)

C.M. Appl. No. 28388/2018 (for exemption)

1. Exemption allowed, subject to just exceptions.

C.M. stands disposed of.

RFA No.553/2018 and C.M. Appl. Nos. 28195/2018 (for stay) & 28196/2018 (for additional evidence)

2. This Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) is filed by the defendant no. 2 in the suit impugning the judgment of the Trial Court dated 27.3.2018 by which the trial court has decreed the suit for possession, injunction and mesne profits filed by the respondent Nos.1 to 4 against the appellant/defendant no. 2 and respondent no. 5/defendant no.1. The suit property is one bearing no. 166-B, part of Khasra No. 24/25, 100 sq. yards, Village Ranhola, now known as Rishal Garden, Najafgarh, Nangloi Road, New Delhi.

3. Original plaintiff in the suit Sh. Harish Chander (since expired and his now represented by respondents no.1 to 4 as his legal heirs), was the father-in-law of the respondent no.5/defendant no. 1 in the suit. Appellant/Defendant no. 2 in the suit is the brother of respondent no.5/defendant no. 1. By the suit the plaintiff claimed ownership of the suit property and set up a cause of action that in term of the documents executed by plaintiff in favour of defendant no.1,being the General Power of Attorney, Will, Gift Deed and Possession Letter dated 23.10.2002, the plaintiff did not transfer the suit property to the respondent no.5/defendant no. 1. Appellant/Defendant no. 2 in the suit being the brother of respondent no.5/defendant no. 1 was originally not a party to the suit but was added on his application as the defendant no.2 in the suit because the appellant/defendant no. 2 pleaded that by the documentation dated 24.6.2009 (being the Agreement to Sell, General Power of Attorney, Will, Possession Letter, etc.), rights in the suit property were transferred by respondent no. 5/defendant no.1 to appellant/defendant no. 2.

4. The facts of the case are that admittedly the original plaintiff Sh. Harish Chander was the owner of the suit property. The daughter of the plaintiff Smt. Rekha @ Radhika was married to the respondent no. 5/defendant no.1 on 17.2.2002. Earlier there was a roka ceremony of the daughter of the plaintiff with respondent no. 5/defendant no. 1 on 7.4.2001. Since the respondent no.5/defendant no. 1 at the time of matrimony was living in a very small accommodation on a plot of 25 sq. yards, the plaintiff for residence of respondent no.5/defendant no.1 and his family purchased the suit plot from the erstwhile owner one Sh. Jaiveer Singh on 3.7.2001 by means of usual documentation being the Agreement to Sell, Affidavit, Possession Letter, etc. As per the plaint the suit property was thereafter constructed by the plaintiff and for which he had used the help of respondent no. 5/defendant no. 1. Plaintiff pleaded that he had paid an amount of Rs.1,10,000/- to the respondent no. 5/defendant no. 1 by means of cheques for construction and also in addition a sum of Rs.85,000/- in cash. The further case in the plaint was that since respondent no. 5/defendant no. 1 pressurized the plaintiff, therefore to keep peace in the family and his own daughter happy, with respect to the suit property, the plaintiff executed the General Power of Attorney, Will, Possession Letter and Gift Deed on 23.10.2002 in favour of the respondent no.1/defendant no. 1. The matrimonial relationship between the plaintiff's daughter and the respondent no. 5/defendant no. 1 did not work out and a consent decree of divorce was obtained from the concerned Court 6.10.2007. The plaintiff cancelled the General Power of Attorney and Will dated 23.10.2002 vide Cancellation Deed dated 9.6.2009. Hence the subject suit was filed seeking possession and mesne profits qua the suit property.

5. Respondent no.5/Defendant no. 1 contested the suit and pleaded that he had purchased the suit property from the plaintiff by means of the subject documentation dated 23.10