JUDGMENT :

S. RAVINDRA BHAT, J.

1. Special leave granted. Counsel for parties were heard, with their consent, for final disposal of the appeal which questions a judgment and order of the Punjab and Haryana High Court¹[Dated 24.8.2016 in RSA 932/2010 (O & M).].

2. The relevant facts are that the property marked 'ABCD' in the site plan (produced along with the suit), located at GT Road, Shahabad Markanda was purchased in the name of the first defendant, allegedly in lieu of claim of properties left in Pakistan. It was stated that the joint family properties belonged to a Hindu undivided family consisting of second plaintiff (hereafter Rajpal), his father and the first defendant (hereafter Girdhari Lal). Girdhari Lal being brother of Rajpal agreed to sell portion marked 'GFEDCB' along with the first floor roof of the entire building (marked ‘ABCD’) to Rajpal’s wife, Bimla Devi (the first plaintiff/first respondent, referred to by her name hereafter) for a total consideration of Rs. 2500/- in 1961. This sum was allegedly received by Girdhari Lal who agreed to execute the sale deed as and when required by Bimla Devi. Girdhari Lal also delivered possession to Rajpal and since then the plaintiffs claim to have been in peaceful possession of the property. The suit alleged that Girdhari Lal was left with no right, title or interest in the suit property except a formal sale deed which remained to be executed. In the year 1978, Bimla Devi purchased portion marked 'IHDA' shown in blue colour in the site plan and thereafter the plaintiffs demolished the existing construction and constructed a residential house in portion marked 'OJHC'. They also reconstructed the shop marked 'GFOB' and 'IJEA'. The plaintiffs being in exclusive possession as prospective purchasers, also constructed a residential house on the entire portion marked 'IHCB' on the first floor, which includes the portion purchased by the plaintiffs in 1978. The Market Committee, Shahabad (M) assessed the portion marked 'OJHC' as a separate unit (bearing No. 647, Ward No. 13, Shahabad (M)) in the name of Bimla Devi. Since the staircase to access the roof was only in the said residential portion and there was no access to the roof from any other side as such, the roof too was in their exclusive possession.

3. The suit alleged that on 05.03.2000, Defendant Nos. 2 to 4 broke the lintel portion of the roof (from point X to Y shown in the site plan, of the first floor) illegally and with intention to take forcible possession of the plaintiffs’ house constructed on the first floor. It was also alleged that they had secretly constructed a staircase in the portion marked 'AEFG' for forcible occupation of the first floor of the building.

4. Girdhari Lal, in his written statement denied that the plaintiffs had any cause of action and claimed that they lacked locus standi to file and maintain the suit. The written statement alleged that the property which was acquired in his name in the year 1961 did not belong to any Hindu joint family as alleged by the plaintiffs, as he had spent his own funds. He denied entering into an agreement to sell the property to Rajpal, and claimed that he had neither received any sale consideration nor handed over possession to Rajpal. Girdhari Lal sold the shop marked 'AGFE' to the second defendant (hereafter, Avtar Singh) by a registered sale deed dated 06.08.1999 together with first floor of the shop. It was alleged that Avtar Singh was in exclusive possession of the property ever since.

5. The allegations in the written statement of Girdhari Lal, were endorsed by Defendant Nos. 2 to 4 in a joint written statement. They reiterated that Avtar Singh purchased the shop in dispute from Girdhari Lal along with chaubara (a room surrounded by door/windows on all fours sides) situated on the roof, for a valuable consideration of Rs.3 lakhs by a sale deed dated 06.08.1999 and possession was delivered to him. Avtar Singh was in possession of the shop for over 30 years prior