The plaintiff-appellant failed to prove possession of the property, leading to the dismissal of the appeal due to lack of cogent evidence.

Headnote:(A) Code of Civil Procedure, 1908 - Sections 11, 2 Rule 2, 7 Rule 11 - Appeal against dismissal of suit for permanent injunction - Plaintiff-appellant claimed possession based on a lease deed but failed to provide sufficient evidence of possession, leading to dismissal of the suit by both Trial and Appellate Courts. (Paras 5, 11)

(B) Evidence - Burden of proof - The plaintiff-appellant did not produce cogent evidence to substantiate his claim of possession, such as utility bills, which are critical for establishing possession. (Paras 11)

Facts of the case:
The plaintiff-appellant filed a suit for declaration and permanent injunction against the defendant-respondents, claiming possession of property based on a lease deed. The defendant-respondents contested the suit, raising various preliminary objections and denying the plaintiff's claims. The Trial Court dismissed the suit, and the First Appellate Court upheld this decision.

Findings of Court:
The plaintiff-appellant failed to prove possession over the suit property, relying solely on an unproven lease deed without additional supporting evidence.

Issues: The main issues included whether the plaintiff was entitled to a decree for permanent injunction and whether he had the locus standi to file the suit.

Ratio Decidendi: The court held that the plaintiff-appellant's failure to provide adequate evidence of possession justified the dismissal of the suit, affirming that the burden of proof lies with the claimant.

Result: Appeal dismissed.

JUDGMENT :

Alka Sarin, J.

CM-423-C-2018

1. This is an application for condonation of delay of 157 days in refiling the appeal.

2. For the reasons stated in the application, delay of 157 days in refiling the appeal is condoned. CM stands disposed off.

CM-422-C-2018

3. This is an application for condonation of delay of 89 days in filing the appeal.

4. For the reasons stated in the application, delay of 89 days in filing the appeal is condoned. CM stands disposed off.

RSA-199-2018

5. The present appeal has been preferred by the plaintiff-appellant challenging the judgment and decree dated 15.05.2014 passed by the Trial Court and the judgment and decree dated 16.08.2016 passed by the First Appellate Court.

6. Brief facts relevant to the present lis are that the plaintiff-appellant herein filed the present suit for declaration and permanent injunction for restraining the defendant-respondents from interfering in the peaceful possession and enjoyment of the house and open portion of the property as mentioned in para No.1 of the plaint, averring in the plaint that the plaintiff-appellant was in possession for about 76 years on the basis of the lease deed bearing Vasika No.28162 dated 06.01.2012 executed in his favour by one Surender Singh son of Balwan Singh. It was further averred that Surender Singh, lessee, was an absolute owner of the property in question and he was enjoying the same peacefully and he had raised construction in the shape of a residential house. It was further averred that originally the area of the plot was 1500 sq. yards and Surender Singh took on lease a specific portion of 1/3rd share i.e. 500 sq. yards from one Mahabir Parsad Sharma and subsequently Smt. Chameli Devi took 500 sq. yards out of Khasra No.4434/35 from one Subh Ram. Thereafter the said Chameli Devi leased out her share to Nand Kishore Sharma who appointed Raj Singh as his GPA. Another 1/3rd share of the plot was taken by Smt. Santosh wife of Jai Kishan. It was further averred that previously Nand Kishore Sharma son of Tilak Ram filed a civil suit for permanent injunction titled as ‘Nand Kishore Sharma through Raj Singh son of Subh Ram Vs. Surender son of Balwan’ which was decided on 24.07.2008. In the said case it was held that the defendant - Surender - who is the lessee in the present suit, had raised construction on east northern part of the suit property, which means that construction raised by Surender was upheld and it was further held that there is 30 feet wide rasta on the northern side. It was further averred that the defendant-respondents had no right and that they were interfering in his possession. On notice the defendant-respondents appeared and filed their written statement raising various preliminary objections as also that the suit was barred under Order 2 Rule 2 as well as Section 11 of the Code of Civil Procedure, 1908, bar of jurisdiction and non-joinder of necessary parties was also raised. On merits it was averred that the plot in question was originally given on lease by Virender i.e. the present plaintiff-appellant to Surender on the basis of a power of attorney in his favour and as the said Surender Singh lost the previously filed suit, therefore, the present suit has been filed in the name of Virender without any basis. It was further stated that Surender Singh was in possession of the property shown in yellow colour in the site plan attached with the written statement. It was further stated that the site plan attached with the plaint has already been held not to be as per the actual state of affair by the Civil Judge, Gurgaon. It was further stated that the site plan attached by Surender Singh with his written statement was not as per site and that the said finding was reaffirmed in the appeal and as such Surender was left with no right, title or interest over the suit property in question and the case had fraudulently been filed through Virender who had himself given the property on lease to Surender. Further averments in the pla

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