RSA 265/2017 Page 1 of 11

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IN THE HIGH COURT OF DELHI AT NEW DELHI

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Date of decision: 10^th August, 2018

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RSA 265/2017 & CM No.42187/2017 (for stay)

PUSHKAR SINGH BISHT

..... Appellant

Through: Mr. Triloki Pandit, Adv.

Versus

BHIM SINGH BISHT

..... Respondent

Through:

Mr. Rajendra Dutt, Advocate.

CORAM:

HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

1.

This Regular Second Appeal under Section 100 of the Code of

Civil Procedure, 1908 (CPC) impugns the judgment and decree [dated

31^st January, 2017 in RCA-DJ-5333/2016 of the Court of Additional

District Judge-IV, New Delhi District] of dismissal of the first appeal

under Section 96 of the CPC preferred by the appellant against the

judgment and decree [dated 26^th September, 2015 in Suit No.282/2014

(Unique ID No.02401C0097952002) of the Court of Civil Judge-05,

Central District] of dismissal of suit filed by the appellant/plaintiff for

recovery of possession of immovable property and for recovery of

2.

The appeal came first before this Court on 21^st November, 2017,

when though without framing any question of law, notice thereof was

ordered to be issued, Trial Court record requisitioned and the parties

directed to maintain status quo qua title and possession of the

property. Though the Suit Court record has not been received and

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only the First Appellate Court record has been received, but the

counsel for the appellant/plaintiff along with the memorandum of

appeal has filed copies of the relevant records of the suit and which

have been perused and during the hearing also no need of any other

Suit Court record has been felt.

3. The appellant/plaintiff instituted the suit, from which this appeal

arises, pleading that (i) the appellant /plaintiff is the sole and absolute

owner of property No.RZ-32/3-D, Gali No.3, Mohan Block, West

Sagarpur, New Delhi, which was purchased by the appellant/plaintiff

from one Ujagar Singh, for valuable consideration and vide sale

document dated 29^th March, 1990; (ii) the property comprises of

ground, first and second floors; (iii) the appellant/plaintiff is residing

on the ground floor of the property; (iv) respondent/defendant is the

brother of the appellant/plaintiff and was facing hardship with regard

to residential accommodation and requested the appellant/plaintiff to

allow him to reside for a temporary period on the second floor of the

property and which was allowed by the appellant/plaintiff; (v) the

respondent/defendant illegally occupied one room on the first floor of

the property and inspite of asking of the appellant/plaintiff, has failed

to vacate the property and thus possession of the respondent/defendant

is illegal.

4. The respondent/defendant contested the suit by filing a written

statement, pleading that (i) the parties, along with their father and

other siblings,were residing in a tenanted accommodation; (ii) the

father of the parties was a government employee and from the funds

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received on his retirement and with contribution from the

respondent/defendant, purchased the land underneath the property;

(iii) the appellant/plaintiff was not having the financial position to

purchase any immovable property at that time; (iv) the construction on

the property was also made from the funds of the father and the

respondent/defendant; (v) the father of the parties died in an incident

of fire in the property on 1^st December, 1995; and, (vi) the

appellant/plaintiff and the respondent/defendant repaired/renovated

the property and started residing therein as