- (1.) This second appeal under Section 100 CPC is filed against the concurrent judgments of the courts below; of the trial court dated 27.7.2010 and the first appellate court dated 20.7.2013; by which the suit of the respondents/plaintiffs for possession has been decreed with respect to the area shown in red in site plan Ex. PW-1/3 forming part of the property bearing no. XVI/3516, Gali no. 6, Ragarpura, Karol Bagh, New Delhi. Both the courts below have decreed the suit on the basis of two conclusions. The first conclusion is that as per the final decree of partition dated 22.3.1971 in the partition suit between all the members of the family including present plaintiffs/respondents and the appellant/defendant (in Suit No. 492/70, original Suit No. 405/69) the portion for which possession was claimed by the respondents/plaintiffs admittedly fell to her share. The second conclusion given by the courts below is that respondents/plaintiffs had received possession of this portion and this was a conclusion which is derived inter alia on account of a sale deed dated 30.6.1995, Ex. PW-2/1, executed by other co-owners and who are parties to the partition decree whereby a specific portion of the property which fell to them on partition was sold to third party- buyers. This aspect of separate possession of having been taken by the parties to the partition suit and the final decree of partition dated 22.3.1971 also became clear from the fact that appellant/defendant himself filed the house tax receipts Exs. DW-1/3 and DW-1/4 which only pertain to his part portion of the property i. e 50 square yards, thus clearly showing that partition had been effected between the parties in terms of and as a follow-up of the final decree of partition dated 22.3.1971.
(2.) Before me counsel for the appellant urged the following aspects:- (i) That there was a family settlement between the parties whereby the respondents/plaintiffs accepted the appellant/defendant as the owner of the suit premises and thus the suit for possession ought to be dismissed. (ii) The final decree for partition dated 22.3.1971 was not engrossed on stamp papers, and therefore, respondents/plaintiffs cannot claim finality of the final partition decree dated 22.3.1971 and hence the respondents/plaintiffs cannot be given the relief of possession as prayed for in the suit and which would amount to execution of the partition decree which has not been stamped. (iii) Respondents/plaintiffs failed to prove that she ever came in possession of the suit property pursuant to the partition decree of 22.3.1971, and therefore, the suit for possession is not maintainable otherwise respondents/plaintiffs will take benefit of the partition decree dated 22.3.1971 which has not become final on account of the same having not been engrossed on the requisite stamp paper.
(3.) I may note that the counsel for the appellant at the outset conceded that appellant/defendant is not claiming title on the basis of adverse possession, and which aspect needs to be mentioned, inasmuch as, the judgments of the courts below show that appellant/defendant had claimed ownership of the suit property on the basis of adverse possession.;