P.K.BHASIN, J. - (1.) THE present appeal is filed by the appellant for setting aside the judgment dated 27th October, 2007 passed by the learned Additional District Judge whereby the suit filed against him by his brother( the respondent herein) for a decree of possession and mesne profits in respect of one room and a bathroom on the ground floor of house no. E -28, Greater Kailash -II, New Delhi(hereinafter to be referred to as ,,the house in dispute and which house was claimed by the respondent to be his self - acquired property) has been decreed and the counter -claim of the appellant -defendant for a decree of partition of the house in dispute on the ground that it was a joint family property has been rejected.
(2.) THE respondent -plaintiff(who shall hereinafter be referred to as ,,the plaintiff) had filed the suit against his brother, the appellant herein and who shall hereinafter be referred to as ,,the defendant, alleging that he was the owner of the house in dispute having purchased the same vide registered sale deed dated 14.11.1979. Regarding the sale consideration he had pleaded that since he was living abroad he had been remitting money from abroad in the bank account of his mother and with that money the house in dispute was purchased in his name. THE plaintiff claimed that he remitted US $ 10,000, 11000, 31231 and 15000 on 19/12/77, 02/08/78, 07/04/79 and 14/09/79 respectively. Prior to the execution of the sale deed an agreement to sell was executed between the vendor and the defendant on whose behalf that agreement dated 5th September,1979 was signed by the defendant as the attorney of the plaintiff. After the purchase of the house in dispute the plaintiff had allowed the defendant to live in one portion of that house comprising of one room and a bath room on the ground floor temporarily as a bare licensee without claiming any charges. THE defendant was married in the year 1982 and then his wife also started living with him in the one room accommodation. However, when the plaintiff asked the defendant to vacate the said accommodation in his possession when some disputes arose between the two brothers in 1998 the defendant refused to vacate and that necessitated initiation of legal proceedings by the plaintiff for getting back the premises in occupation of the defendant. In the suit filed by the plaintiff he had claimed a decree of possession as well as mesne profits @ Rs.5,000/ -p.m. for a period of three months prior to the filing of the suit and also for the subsequent period till the delivery of possession to him. The defendant contested the suit and claimed that even though the house in dispute was purchased in the name of the plaintiff and he(the defendant) had acted as his attorney at that time but subsequently in January,1980 it was thrown in the hotch potch of the joint family of Kalias by the plaintiff by making a declaration to that effect which was re - affirmed also on the occasion of Rakhi in the same year when also he had visited India and with that declaration the house in dispute had ceased to be the separate property of the plaintiff. The joint family according to the defendant at that time comprised of their father(who subsequently died in the year 1981), mother, married sister and another brother Virender Nath. The defendant also pleaded that in the ground floor portion their mother was also living with him and the other brother Virender Nath was living on the first floor. Regarding the money which the plaintiff claimed to have remitted from abroad the defendant pleaded that he did not have details of those remittances but it was claimed while admitting that for the purchase of the house in dispute the plaintiff had contributed in good measure that their father had also contributed money (In the memorandum of appeal however the appellant -defendant admitted the remittance of U.S. $ 10,000 and 11,000 by the plaintiff in the bank account of the mother). It was also pleaded that the plaintiff had filed the suit only as a counter blast to the petition filed by the defendant for dissolution of his marriage with his wife on the ground that she was having adulterous relationship with the plaintiff. The defendant thus while praying for the dismissal of the plaintiffs suit sought a decree of partition of the house in dispute by presenting a counter -claim claiming 1/4th share therein. The mother and the sister of the original parties to the suit, who had also been subsequently ordered by the trial Court to be impleaded in the suit as well as in the counter -claim, supported the original defendant (the appellant herein) by adopting the defence raised by him in his written statement. Third brother Virender Nath was also impleaded but he did not participate in the trial and remained ex parte. The plaintiff in his reply to the counter -claim took a preliminary objection that the suit (counter -claim) was not maintainable and the defendant was debarred from raising the plea of benami in view of Section 4 of the Benami Transactions (Prohibition) Act,1988. On merits, the plaintiff denied that anybody except him had contributed money for the purchase of the house in dispute or that he had thrown that property into the hotch potch of the joint family. He also denied the very existence of any Joint Hindu Family. The plaintiff also denied that he had visited India in January,1980 or on the Rakhi day in August,1980, as had been claimed by the defendant
(3.) FOLLOWING issues were framed by the trial Court for trial: - "1) Whether this suit is not properly valued for the purposes of Court fee and jurisdiction as alleged in the written statement? OPD 2) Whether the suit building after its purchase in the name of the plaintiff was thrown into the hotchpotch of joint family pool and was treated as a joint family property as alleged in the counter claim filed on behalf of the defendant? OPD 3) Whether defendant no. 1 is a licensee in respect of suit premises as alleged in the plaint and if so to what effect? OPP 4) In case issue no. 2 is decided in the affirmative, whether the plaintiff is entitled to recover mesne profits from the defendant and if so at what rate and for which period? OPP 5) Relief." The learned trial Court decided issues no. 2, 3 and 4 against the defendant -appellant and passed a decree of possession and mesne profits also @ Rs. 5000/ - per month w.e.f. 01.05.1999 till the vacation of the licensed premises by the defendant -appellant. The decision of the trial Court is now under challenge before this Court at the insistence of the defendant.;