SH. RAM AVTAR AGGARWAL Vs. KANTI PRASAD AGGARWAL

JUDGEMENT

(1.) CHALLENGE by means of this First Appeal under Section 96 of the Code of Civil Procedure, 1908 is to the impugned judgment and decree dated 28th March, 2000 whereby the suit of the Respondent/Plaintiff for recovery of possession of a portion of the property bearing No. 498 -1A, Bhola Nath Nagar, Shahdara, Delhi was decreed.

(2.) THE facts of this case are that one Smt. Kailashwati became the owner of a plot of 143 square yards by virtue of a sale deed dated 30.9.1957 executed in her favour by one Sh. Muralidhar Sharma. As per the sale deed, exhibited as Ex.DW -3/A, the plot of 143 square yards was a part of a larger plot of 333 square yards numbered as plots No. 15 and 16. Smt. Kailashwati after purchase of this plot, wanted to make construction on the same and therefore applied for sanction of the plans from the municipal authorities. The plan in favour of Smt. Kailashwati for plot No. 16 was sanctioned by the Municipal Authorities vide letter dated 23.6.1962 (Ex.PW -1/9). This document Ex.PW -1/9 sanctions the plan of construction to Smt. Kailashwati for plot No. 16. The sanctioned plan was filed and proved as Ex.PW -1/8. It appears that a portion of the plot which was purchased by Smt. Kailashwati, and which was originally a part of plots No. 15 and 16, was acquired for the purposes of road widening. For this reason, sanction which is applied for is only with respect to plot No. 16 and which now is referred to as municipal No. 498 -1A. Smt. Kailashwati died on 25.4.1980. Before her death, Smt. Kailashwati however, executed her registered Will dated 11.5.1977 and which has been filed and proved, through one of the attesting witnesses, as Ex.PW -3/A. As per this Will, Smt. Kailashwati bequeathed the entire subject property bearing No. 498 -1A to the Plaintiff/Respondent. The Plaintiff/Respondent claims that the Appellant/Defendant who was his brother, that is, the son of Smt. Kailashwati was permitted to stay in a portion of the property No. 498 -1A on license basis by Smt. Kailashwati. This portion of 498 -1A is one room with a bath room -cum -WC, a passage and a portion of the Verandah. After the death of Smt. Kailashwati the Respondent/Plaintiff on the Appellant/Defendant having constructed his own property at Shalimar Park, Shahdara, Delhi requested the Appellant/Defendant to vacate the portion of the property No. 498 -1A in his possession, and of which the Respondent/Plaintiff had become an owner by virtue of the Will dated 11.5.1977 of their mother. On the failure of the Appellant/Defendant to vacate the suit property, the suit for recovery of possession of the subject portion of the property was filed and which has been decreed by the impugned judgment and decree dated 28.3.2000.

(3.) I may state that most of the facts stated in the present judgment while dealing with this RFA are common with the facts of the connected RFA No. 141/2008 and which is also disposed of by this judgment. The connected RFA has been filed challenging the impugned judgment and decree dated 26.2.2008 of the Trial Court whereby the suit filed by the present Appellant and others who represented the branches of the other heirs of Smt. Kailashwati, basically against the present Respondent who was the Defendant in the second suit, was dismissed. The impugned judgment and decree in RFA No. 141/2008 dated 26.2.2008 extensively relies upon and is for a considerable part based upon the impugned judgment and decree dated 28th March, 2000 which is subject matter of the appeal being RFA No. 226/2000.