Pushkar Singh Bisht v. Bhim Singh Bisht

RAJIV SAHAI ENDLAW, J. AUGUST 10, 2018 M.

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 10th August, 2018 + 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 31st 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 26th 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 mesne profits. 2. The appeal came first before this Court on 21st 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 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 29th 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 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 1st December, 1995; and, (vi) the appellant/plaintiff and the respondent/defendant repaired/renovated the property and started residing therein as co-owners thereof. 5. An ex-parte decree of possession and recovery of mesne profits in favour of the appellant/plaintiff and against the respondent/defendant was passed on 13th May, 2013. The counsel for the appellant/plaintiff informs, that on the respondent/defendant filing an application under Order IX Rule 13 of the CPC, the said decree was set aside and the suit proceeded to trial. 6. On the pleadings of the parties, the following issues were framed in the suit on 22nd January, 2002: "(i) Whether plaintiff h