KEDAR NATH Vs. VIJAY KUMAR KAPANI

JUDGEMENT

(1.) The question of law formulated in the memorandum of appeal reads on internal page 17. The contention of the learned counsel for the appellant is that the memorandum of understating dated 1.7.1985 entered between the plaintiff and the defendant was an understanding between the parties that the property will be passed on to the defendant after five years if the money paid by the defendant to the plaintiff is not refunded back by him; further the finding of the trial court that this document required registration has raised substantial questions of law. The evidence adduced before the trial court has been ignored; the trial court could not have concluded that the defendant had paid only small amount of Rs.3,000/- in the purchase of the disputed property; the unimpeachable evidence before the Courts below that the children of defendant were studying in Ashok Vihar evidencing the residency of the defendant in the suit premises since 1975 was again mis-appreciated; in these circumstances the Courts below in decreeing the suit of the plaintiff on these scores has committed a perversity which is liable to be set aside.

(2.) Before adverting to an attempt to answer these queries raised by the learned counsel for the appellant, the factual matrix of the case would necessarily have to be gone into.

(3.) The plaintiff Vijay Kumar Kapani had filed a suit for recovery of possession of house no.B-13-B, Pocket-B, Ashok Vihar, Phase-II, Delhi as also damages of Rs.7500/-. Defendant no.1 was the brother of the plaintiff and the defendant no.2 was his wife. Parties were having amicable relations. Case of the plaintiff is that earlier his brother was living in house no. D-186, Lajpat Nagar, New Delhi which he had to vacate on 13.1.1987; in these circumstances, the plaintiff had permitted the defendant to live in the suit property till the time he could make alternate arrangement; defendants had assured him that they would vacate the suit property on or before 26.3.1988; in spite of requests defendants did not vacate the suit property.