IMPORTANT POINT
When a party to suit does not appear in witness box and state his own case on oath, this shall give rise to an adverse inference against him.

Hima Kohli, J.—The appellant seeks setting aside of the judgment and decree dated 7.9.2016 passed by the trial court in a suit for declaration and permanent injunction instituted by him against his siblings, respondents No.1, 2, 3 (since deceased), respondent No.4 and his father, respondent No.5 (since deceased) (defendants No.1 to 5 in the trial court).

2. Before considering the submissions made by learned counsel for the appellant, it is necessary to take note of the factual narrative. The appellant/plaintiff had instituted the aforesaid suit praying inter alia for declaring the sale deed dated 22.5.2006 executed by the respondent/defendant No.5 (father of the parties) in favour of the respondent/defendant No.1 as null and void and further, for declaring that the he is the joint owner of the said premises; and asking for a decree of permanent injunction for restraining the respondents/defendants from creating any third party interest in the suit premises.

3. The appellant/plaintiff has stated in the suit that he and the defendants are class-1 heirs of late Smt. Prasin Kaur, mother of the appellant/plaintiff and the respondents/defendants No.1 to 4 and wife of the respondent/defendant No.5 (since deceased) who owned a property measuring 110 sq. yards situated at village Tihar, Fateh Nagar, New Delhi; that the mother had acquired the said property, by virtue of sale documents executed in her favour by the erstwhile owner, Shri Budh Singh on 14.2.1974. While skipping over the nature of the sale documents executed by the earstwhile owner in favour of Smt. Prasin Kaur, the appellant/plaintiff simply stated that during her lifetime, the mother was asserting all her rights as an owner of the suit premises and after the same was purchased, “the entire family shifted to the said property and thereafter the plaintiff had been in continuous, open, peaceful and exclusive possession of the same.”

4. On a pointed query raised to learned counsel for the appellant/plaintiff as to what were the nature of the documents of title that were executed by the erstwhile owner in favour of Smt. Prasin Kaur, he reluctantly submits that though it has not been specifically stated anywhere in the plaint, a GPA was executed in favour of Smt. Prasin Kaur and all the remaining documents of title, including Agreement to Sell, possession letter and receipt of sale consideration were executed in favour of the father of the parties (defendants No.5, since deceased).

5. The plaint goes on to narrate in para 5 that the plaintiff had been occupying the entire ground floor and half constructed portion of the second floor of the suit property, while the respondent/defendant No.1 was occupying the first floor and the remaining un-constructed portion of the second floor. Smt. Prasin Kaur had expired intestate on 17.8.2000 and on her demise, all the parties are entitled to an equal share in the suit property, being class-1 legal heirs.

6. A joint written statement was filed by all the respondents/defendants in opposition to the suit wherein, the pleas taken in the plaint were traversed. The respondents/defendants pleaded that the appellant/plaintiff had himself executed a Disclaimer Deed dated 31.8.2005 in favour of his father five years prior to the demise of the mother, wherein he had acknowledged the defendant No.5 to be the absolute owner of the suit property. Given the above facts, he is estopped from claiming ownership of the suit premises by setting up an entirely new case that the mother of the parties was the owner of the suit premises. They went on to clarify that the father of the parties (deceased/defendant No.5) had purchased the suit property from one Shri Budh Singh and Smt. Manjit Kaur, by virtue of a set of sale documents in the form of Agreement to Sell and Payment Receipt, both dated 14.2.1974, against payment of the sale consideration and they had simultaneously handed over the actual physical possession thereof to him. In order to secure and