J U D G M E N T

MANMEET PRITAM SINGH ARORA, J (ORAL):

RSA 154/2023, CM APPL. 42164/2023, CM APPL. 42165/2023, CM APPL. 45434/2023 & CM APPL. 48701/2023

1. The present second appeal filed under Section 100 of the Code of Civil Procedure, 1908 (‘CPC’) impugns the judgment dated 28.02.2023 passed by ASCJ, Patiala House Courts, New Delhi (‘First Appellate Court’) in RCA No. 5/2017, titled as Azad Singh & Ors. v. Krishna Devi & Ors., whereby the First Appellate Court dismissed the appeal filed against the judgment dated 20.04.2015 passed by Civil Judge, Central (09), Tis Hazari Courts, Delhi (‘Trial Court’) in CS No. 72/2011 (1st Suit), titled as Krishna Devi & Ors. v. Azad Singh & Ors., whereby the 1st suit filed by the plaintiffs on 17.11.2001 for perpetual and mandatory injunction was decreed in favour of plaintiffs.

1.1 The Appellants herein were defendants and the Respondents herein were plaintiffs before the Trial Court.

1.2 The Civil Suit No. 72/2011 (1st Suit) was filed by the Respondents on 17.11.2001, seeking relief of perpetual and mandatory injunction thereby praying that the Appellants and their agents be directed to vacate one (1) room, verandah on the ground floor and they be restrained from interfering in the possession and occupation of the Respondents over the second floor of the premises bearing no. WZ-134, Naraina Village, New Delhi (‘suit property’)

as shown in red colour in the site plan annexed with the plaint.

1.3 In the said suit it was averred by the Respondents that late Sh. Jagdish Prasad is the rightful owner of the suit property, which devolved upon him through the registered Will dated 15.10.1987; and late Sh. Jagdish Prasad had given one (1) room and verandah on the ground floor of the suit property to the Appellant No.1 herein on leave and license basis, which license was eventually revoked during the lifetime of the late Sh. Jagdish Prasad.

1.4 The said registered Will was executed by Sh. Sisram, the father of late Sh. Jagdish Prasad and Appellant No.1 herein. Sh. Sisram was the owner of the property WZ-134, Naraina Village, New Delhi.

1.5 The Respondents are the surviving Class-I legal heirs of late Shri Jagdish Prasad. Appellant No. 1 and Appellant No. 2 are the real brother and sister-in-law, respectively of late Sh. Jagdish Prasad.

1.6 The Appellants filed joint written statement in the said suit and averred that the Respondents have filed a false and frivolous suit. It was stated that the suit property was given to Appellants by late Sh. Jagdish Prasad as recorded in the unregistered ‘Bhai Faisla’ dated 20.12.1987. The Appellants claimed ownership of the suit property on the basis of the said ‘Bhai Faisla’. 1.7 The Trial Court vide judgment dated 20.04.2015 has decreed the suit in favour of the Respondents and held that the Respondents have established that the suit property was owned by late Sh. Jagdish Prasad qua the registered Will dated 15.10.1987; and after his demise on 07.10.2001 the same was owned by the Respondents. The Trial Court further held that the Appellants were permitted to occupy the suit property on leave and license basis, which stood terminated after the demise of late Sh. Jagdish Prasad.

1.8 The judgment dated 20.04.2015 of the Trial Court was challenged before the First Appellate Court in RCA No. 5/2017, wherein the First Appellate Court upheld the findings of the Trial Court and dismissed the appeal vide the impugned judgment dated 28.02.2023.

1.9 Both, the Trial Court and First Appellate Court concluded that the photocopy of unregistered ‘Bhai Faisla’ dated 20.12.1987 has not been proved by the Appellants and is inadmissible in evidence.

Arguments of Appellants

2. The learned counsel for the Appellants states that both the Courts below have erred in returning a finding that the registered Will dated 15.10.1987, made by late Sh. Sisram was valid and proved in accordance with law.

2.1 He states that the Appellants have filed on record a photocopy of the unregistered ‘Bhai Faisla’ date