RFA No. 809/2017

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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RFA No. 809/2017

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22^nd September, 2017

HANSRAJ

..... Appellant

Through:

Mr. H.S.Kohli, Advocate.

versus

JAGMINDER SINGH & ORS.

..... Respondents

CORAM:

HON’BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

CM No.34804/2017(Exemption)

Exemption allowed subject to just exceptions.

CM stands disposed of.

CM Nos. 34802/2017(delay in filing) and 34803/2017 (delay in re-

filing)

For the reasons stated in the applications, delay in filing and re-

filing is condoned.

CMs stand disposed of.

RFA No. 809/2017 & CM Nos.34799/2017 (U/s 144 r/w 151 CPC)

and 34800/2017 (U/o XLI Rule 27 CPC).

1.

This Regular First Appeal under Section 96 of the Code

of Civil Procedure, 1908 (CPC) is filed by the defendant in the suit

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impugning the judgment of the trial court dated 22.2.2017 by which

the trial court has decreed the suit for possession and injunction filed

by the respondents/plaintiffs against the appellant/defendant with

respect to the suit property admeasuring 250 sq. yards out of

K.No.28/4, Village Kakrola, New Delhi. At this stage, I would like to

mention that the decree in question has been executed and the

respondents/plaintiffs have taken possession of the suit property. It is

for this reason that CM No. 34799/2017 has been filed by the

appellant/defendant for restoration of possession.

2.

The facts of the case are that the respondents/plaintiffs

pleaded that they had become owner of the suit property by purchase

of the same from the previous owner by virtue of documentation dated

18.12.2008. It was pleaded that the appellant/defendant was already

in possession of the suit property and handed over possession to the

respondents/plaintiffs who had purchased the same, however, after a

few days the appellant/defendant requested the respondents/plaintiffs

to allow him to stay in the suit property for some time and, therefore,

appellant/defendant was allowed to do so. Appellant/defendant was

pleaded to be a licencee and who refused to vacate the suit property,

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and therefore, the subject suit for possession, mesne profits and

injunction was filed.

3.

Appellant/defendant contested the suit and pleaded that

appellant/defendant is the owner of the suit property by adverse

possession, inasmuch as the appellant/defendant had occupied the suit

property in June, 1985. It was pleaded that the appellant/defendant

was enjoying the suit property since the year 1985 being in adverse

and hostile possession of the same. It was also pleaded that the

appellant/defendant in the year 1987 had made construction on the suit

property of two rooms, latrine, bathroom and kitchen. It was also

pleaded that appellant/defendant had the necessary documents

showing his possession of the suit property such as ration card,

election identity card etc. The story of the respondents/plaintiffs was

denied that appellant/defendant was put in possession by the

respondents/plaintiffs. Suit was therefore prayed to be dismissed.

4.

The trial court after completion of pleadings framed the

issues on 27.3.2014 and thereafter re-framed the issues on 18.2.2016.

Original issue nos. 3 and 4 framed on 27.3.2014 pertained to

ownership of the appellant/defendant of the suit property on account

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of adverse possession, but these two issues were deleted when the

issues were re-framed on 18.2.2016. These issues as to adverse

possession were deleted by the trial court by observing that the

appellant/defendant cannot seek declaration in his favour of ownership

without filing a counter-claim and paying the necessary court fee. The

relevant paras of the impugned judgment of the trial court mentioning

these asp