Chander Mohan Sharma v. Jagdish Prasad Sharma

RAJIV SAHAI ENDLAW, J. FEBRUARY 11, 2016 "gsr"..

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 11th February, 2016. + RFA 288/2015 & CM No.8108/2015 (for stay) CHANDER MOHAN SHARMA ..... Appellant Through: Mr. Hameed S. Shaikh, Adv. Versus JAGDISH PRASAD SHARMA ..... Respondent Through: Mohd. Shariq, Adv. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. The appeal impugns the judgment and decree dated 21st January, 2015 of the Court of Additional District Judge (ADJ)-02 (Central), Tis Hazari Courts, Delhi decreeing the suit (CS No.39/2013 bearing Unique ID No.02401C0444072012) filed by the respondent / plaintiff against the appellant / defendant for recovery of possession of immovable property and for mesne profits / damages for use and occupation at the rate of Rs.3,000/- per month from the date of judgment and decree till delivery of possession. 2. Notice of the appeal was issued and thereafter the parties were referred to the Mediation Cell of this Court. Mediation remained unsuccessful and vide order dated 5th November, 2015 the appellant / defendant was directed to deposit / pay mesne profits in terms of judgment and decree. The Trial Court record was also requisitioned. 3. Admit. 4. Considering that the appellant / defendant is the son of the respondent / plaintiff and the respondent / plaintiff is aged about 84 years and there are allegations of harassment of the respondent / plaintiff by the appellant / defendant owing to residence in the same premises, it is deemed appropriate to take up this appeal for final hearing at this stage itself. 5. The counsel for the appellant / defendant has been heard and the trial Court record perused. The need for calling upon the counsel for the respondent / plaintiff to address argument has not arisen. 6. The respondent / plaintiff on 20th September, 2012 instituted the suit from which this appeal arises pleading: (i) that the respondent / plaintiff is the sole and absolute owner of two and a half storied property bearing Municipal No.1371-73 and 1375-77 situated at Krishna Gali, Bazar Guliyan, near Dariba Kalan, Delhi and that it is the self acquired property of the respondent / plaintiff; (ii) that the said property was purchased by the respondent / plaintiff in public auction held on 28th October, 1961 vide Certificate of Sale dated 3rd September, 1962; (iii) that the appellant / defendant being the eldest son of the respondent / plaintiff had been residing in the premises along with the respondent / plaintiff and occupying one room, one store, one kitchen and common courtyard on the first floor of the property no.1375-77 and the remaining property is in occupation of the respondent / plaintiff, his wife and other children; (iv) that there have been differences between the appellant / defendant, his wife and children and the respondent / plaintiff and the remaining family leading to constant bickering in the residential house; (v) that since January, 2012, the conduct of the appellant / defendant and his wife and sons had become very harsh and insulting towards the respondent / plaintiff and of which complaints were also lodged with the police but to no avail; (vi) that in the circumstances, the respondent / plaintiff vide legal notice dated 28th January, 2012 terminated the licence of the appellant / defendant to reside in the premises and called upon the appellant / defendant to vacate the premises; (vii) that the appellant / defendant failed to comply with the legal notice and hence the suit. 7. The appellant / defendant contested the suit by filing a written statement pleading: (a) that the subject property was purchased in auction held by the Rehabilitation Department on 28th October, 1961 by the respondent / plaintiff and one Sh. Ram Parshad Sharma but in the name of the respondent / plaintiff; the auction value was paid by both in equal share; (b) that the respondent / plaintiff upon migration from Pakistan was staying along with his mother (grandmother of the appellant / defendant) who was employed in a ho