DURGESH SAINI Vs. PREMWATI SAINI AND ORS

JUDGEMENT

(1.) This Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) was called out in the morning for the first time when on behalf of the respondent nos. 1 and 2/defendant nos. 1 and 2, a pass over was sought. Again, on the second call, a pass over was sought by stating that the counsel is just coming. On the third call, again it was stated that counsel is just coming and he is in the "parking", and therefore, this Court refused to give a further pass over and consequently the Ld. counsel for the appellant/plaintiff started arguing the matter. At this stage, suddenly one counsel appears for respondent nos. 1 and 2/defendant nos. 1 and 2 and she again stated that the main counsel for respondent nos. 1 and 2/defendant nos. 1 and 2 is in the "parking" and he would be coming. The matter was argued by the Ld. counsel for the appellant/plaintiff for about 10 to 15 minutes, but in this period the counsel for the respondent nos. 1 and 2/defendant nos. 1 and 2 had not come from "parking". This Court is therefore proceeding to pronounce the judgment in the present case. During the course of dictation of the judgment, the Ld. counsel for respondent nos. 1 and 2/defendant nos. 1 and 2 appeared and thus he was heard with respect to the case of the respondent nos. 1 and 2/defendant nos. 1 and 2.

(2.) The facts of the case are that the appellant/plaintiff filed the subject suit pleading that she was the owner of the suit property along with the respondents/defendants. The suit property is property bearing no. M-30/B-23/2N, Baljeet Nagar, Near West Patel Nagar, Railway Station, New Delhi, admeasuring 85 sq. yards. The suit property consists of three rooms, chowk, one shop, two kitchens and two bathrooms. The appellant/plaintiff is pleaded to have purchased the suit property in terms of the Documentation dated 15.10.1986 from the erstwhile owner Sh. Ram Pal. The Documents dated 15.10.1986 are the agreement to sell, affidavit and a receipt which was duly registered before the Sub-Registrar showing payment by the appellant/plaintiff along with respondent no. 3/defendant no. 3 of a sum of Rs. 32,000/- to the erstwhile owner Sh. Ram Pal. There is also a General Power of Attorney executed by Sh. Ram Pal in favour of the appellant/plaintiff and the respondent no. 3/defendant no. 3. In the suit, it was pleaded that defendant nos. 1 and 2 are the Dewar and Dewrani of the plaintiff, i.e. the brother of the plaintiff's husband and the wife of the brother of the husband of the plaintiff, and who were permitted to live in the suit property as licensees, but since the respondent nos. 1 and 2/defendant nos. 1 and 2 failed to vacate the suit property, the subject suit for possession and mesne profits was filed after the appellant/plaintiff made a complaint to the police on 16.12.2010 as the respondent nos. 1 and 2/defendant nos. 1 and 2 were illegally demolishing the suit property.

(3.) On behalf of the respondent nos. 1 and 2/defendant nos. 1 and 2, by filing written statement, suit was contested and prayed to be dismissed. It was pleaded that the respondent nos. 1 and 2/defendant nos. 1 and 2 were never inducted as licensees in the year 2000. It was also the case of the respondent nos. 1 and 2/defendant nos. 1 and 2 that both of them were the co-owners of the suit property by virtue of a family settlement.