HARI SINGH Vs. MADAN LAL

JUDGEMENT

(1.) Shri Hari Singh is the appellant in the present appeal which is first appeal under Section 96 read with Order 41 of the Code of Civil Procedure. He was plaint in the Suit No. 862/93 filed by him against the respondents herein. The Suit was possession and recovery of damages against the defendants/respondents. The was filed by making the averments that appellant is the owner of Property No.30 Rameshwari Nehru Nagar (Jag Jiwan Niwas), Delhi. According to the appellant had permitted the defendants to stay in the portion of the Suit premises, shown yellow colour in the site plan enclosed with the plaint. This permission was granted view of the fact that defendants are the relations of the plaintiff inasmuch as defenda No.3 is the wife of the younger brother of the plaintiff and the defendants 1 and 2 the sons of the younger brother of the plaintiff (late) Sh Bishan Dayal. The Suit was contested by the defendants/respondents herein wherein the plea of co-ownership was taken. It was averred that during the year 1947 Smt. Parwati, Bishan Dayal and Hari Singh came to India as refugees and occupied this house in dispute. The house is not self-purchased property of the plaintiff. It was a property belonging to rehabilitation department. Being head of the family Smt. Parwati requested the department to allot the house in the name of Shri Hari Singh being eldest son, Shri Bishan Dayal paid Rs. 1016.00 as cost of this house being co-owner. After death of Shri Bishan Dayal defendant No.3 also became its co-owner. The defendants are residing as coowners since 1949 and not as licensee.

(2.) On the basis of pleadings, following issues were framed by the trial Court: i.Whether the plaintiff has a cause of action and locus standi to file this suit? Opp. ii. Whether the suit with the present form is maintainable? OPP iii. Whether the suit is within limitation? OPP. iv. Whether the defendants are licensees/or co-owners in the property? OP parties both. v. Whether the plaintiff is entitled to recovery of damages from the defendants? OPP. vi. Whether the suit is bad for non-joinder of necessary parties? OPD. vii. Whether the property was joint family property if so, its effect? OPD. viii. Relief.

(3.) Thereafter evidence was led. Arguments heard and the learned trial Court passed impugned judgment and decree dated 21/11/1998 dismissing the Suit of the plaintiff/appellant herein. The Suit has been dismissed primarily on the ground that the plaintiff is not the exclusive owner of the property in question and it is point family property. Issues No.4 and 7 were, therefore, decided in favour of the respondents/defendants and against the appellant.