RFA No.888/2017 Page 1 of 14

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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RFA No.888/2017

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24^th October, 2017

ROMESH KUMAR

..... Appellant

Through: Mr. Vinay Sabharwal, Advocate.

versus

RAKESH KUMAR & ANR.

.... Respondents

CORAM:

HON’BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

C.M. No.37694/2017 (exemption)

1.

Exemption allowed subject to just exceptions.

C.M. stands disposed of.

C.M. No.37692/2017 (for condonation of delay)

2.

For the reasons stated in the application, delay of 83 days

in filing the appeal is condoned.

C.M. stands disposed of.

RFA No.888/2017 and C.M. No.37693/2017 (stay)

3.

This Regular First Appeal under Section 96 of Code of

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

RFA No.888/2017 Page 2 of 14

impugning the judgment of the Trial Court dated 28.1.2017 by which

the trial court has decreed the suit for possession filed by the

respondent no.1/plaintiff. The suit property is one room with attached

latrine bathroom and common kitchen at the first floor of property

no.C-86 situated in the area of village Khureji Khas, Illaqua Shahdara,

Jitar Nagar, Delhi-110051 admeasuring 147 sq. yards. Respondent

no.1/plaintiff is the father and the appellant is the son and who was the

defendant no.1 in the trial court. Respondent no.2 is the wife of the

appellant i.e the daughter-in-law of the respondent no.1/plaintiff and

she was the defendant no.2 in the trial court.

4.

Respondent no.1/plaintiff pleaded that he had purchased

the suit property C-86 in two parts. One part was purchased from the

erstwhile owner Sh. Hukumat Rai in terms of the sale deed dated

10.7.1971 and the other part was purchased by the respondent

no.1/plaintiff from his brother Sh. Dinesh Kumar vide sale document

dated 13.8.1993. Respondent no.1/plaintiff pleaded that in July, 2010

the respondent no.1/plaintiff had entered into a collaboration

agreement with a builder for construction over the suit land, and

thereafter, in terms of the collaboration agreement the suit property

RFA No.888/2017 Page 3 of 14

was developed and constructed and its peaceful possession was

handed

over

to

the

respondent

no.1/plaintiff.

Since

the

appellant/defendant no.1 and the respondent no.2/defendant no.2

requested the respondent no.1/plaintiff to stay in the suit property, the

respondent no.1/plaintiff on account of their being his son and

daughter-in-law allowed them to stay in the suit property under an oral

licence without any licence fee. The defendants had to vacate the suit

property by December, 2012 but since they failed to vacate hence after

serving the legal notice dated 19.1.2013, the respondent no.1/plaintiff

filed the subject suit.

5.

It was only the appellant/defendant no.1 who contested

the suit. Respondent no.2/defendant no.2 did not appear and hence

was proceeded ex-parte. The appellant/defendant no.1 filed his written

statement and prayed for dismissal of the suit. The main defence

raised by the appellant/defendant no.1 was that the suit property was

not purchased by the respondent no.1/plaintiff from his own funds but

the suit property is an ancestral property which belonged to the

grandfather of the appellant/defendant no.1, and therefore, the

appellant/defendant no.1 has a right in the suit property. Though not

RFA No.888/2017 Page 4 of 14

so specifically pleaded effectively the case of the appellant/defendant

no.1 is that the suit property is an HUF property because the suit

property was inherited by the respondent no.1/plaintiff from h