Om Prakash Pandey v. Shri Ram Prakash Pandey

RAJIV SAHAI ENDLAW, J. AUGUST 06, 2018 bs

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 6th August, 2018. + OM PRAKASH PANDEY ..... Appellant Through: Mr. S.K. Mishra, Mr. T.D. Shukla and Mr. G.S. Tiwari, Advs. Versus RAM PRAKASH PANDEY ..... Respondent Through: None. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW CM No.31365/2018 (for exemption) 1. Allowed, subject to just exceptions. 2. The application is disposed of. 3. This Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) impugns the judgment and decree (dated 3rd May, 2018 in RCA No.11/2016 (New RCADJ No.61819/2016) of the Court of Additional District Judge-12 (Central)) of dismissal of first appeal under Section 96 of the CPC preferred by the appellant/plaintiff against the judgment and decree (dated 5th September, 2012 in Suit No.1616/2006 (Unique ID No.02401C0885912006) of the Court of Civil Judge-01 (North)) of dismissal of suit filed by the appellant/plaintiff for (i) declaration of his exclusive ownership of property No.44/1 in Lal Dora 1908-9 Village Mochi Bagh, Nanak Pura, New Delhi; (ii) recovery of possession thereof from the respondent/defendant; and, (iii) permanent injunction restraining the respondent/defendant from dealing with the property. 4. The counsel for the appellant/plaintiff has been heard and the copies of the Suit Court record filed along with the Memorandum of Appeal perused. No other suit record has been referred to in the arguments. 5. The appellant/plaintiff instituted the suit from which this appeal arises, pleading (i) that the appellant/plaintiff purchased the property aforesaid and paid the entire purchase consideration thereof; (ii) however, the documents of the said property were obtained in the joint names of the appellant/plaintiff and his brother respondent/defendant because the two were residing together; (iii) that though the appellant/plaintiff paid a total sale consideration of Rs.1,50,000/- for purchase of the aforesaid property but in the documents viz. Agreement to Sell, Power of Attorney, Affidavit, Receipt, Will etc. executed by the erstwhile owner of the said property in favour of the appellant/plaintiff and the respondent/defendant showed the purchase consideration as Rs.95,000/- only; (iv) that the appellant/plaintiff also spent another Rs.25,000/- as capital, on setting up business in the said property; (v) that the respondent/defendant neither spent any money in purchase of the property nor any money for setting up of the business in the said property; (vi) that the appellant/plaintiff is the sole/absolute proprietor of the business being carried on from the said property but the respondent/defendant being the brother, used to help the appellant/plaintiff in the said business and the appellant/plaintiff used to pay the respondent/defendant as per the work done by him; (vii) that the person from whom the appellant/plaintiff had purchased the property, instituted a suit for declaration, recovery of possession, damages etc. against the appellant/plaintiff and the respondent/defendant, with respect to the said property, and which suit was finally dismissed; the appellant/plaintiff only contested the said suit; (viii) that the appellant/plaintiff and the respondent/defendant entered into an agreement dated 17th January, 1998 whereunder the respondent/defendant had no right, title or interest in the property or the business being carried on therein, though it was provided that if the respondent/defendant works/helps in the business being carried on, he could, claim 50% share in the profit; (ix) that the respondent/defendant however when so asked by the appellant/plaintiff to hand over the control of the business and the shop, refused to do so. Hence the suit. 6. The respondent/defendant contested the suit, inter alia pleading (a) that the respondent/defendant was the sole owner of the property aforesaid and was in exclusive possession thereof and it was the appellant/plaintiff who was seeking to disturb the possession