MADAN LAL Vs. SUNDER LAL

JUDGEMENT

(1.) The challenge by means of this Regular First Appeal under Section 96 of Code of Civil Procedure, 1908 (CPC) is to the impugned judgment of the trial Court dated 11.5.2010. By the impugned judgment, the suit of the respondent/plaintiff for possession with respect to a shop i.e. shop No. 1, ground floor, BE-306, Gali No. 5, Hari Nagar, New Delhi was decreed. Parties to the present case are brothers.

(2.) The facts, as pleaded by the respondent/plaintiff in the plaint, are that the respondent/plaintiff purchased the suit plot admeasuring 50 sq. yds. by means of a registered sale deed dated 28.7.1990 and thereafter constructed three shops on the same out of which the disputed shop No. 1 is one of the shops. It is pleaded that the appellant/defendant being a brother requested that a shop be given to him because he wanted to carry out his business therein. The subject shop was therefore given to the appellant/defendant where he started his cycle repairing business and subsequently the business of steel iron in the name of M/s S M Steel Company. The respondent/plaintiff claimed that thereafter the appellant/defendant purchased his own properties, including one shop in the property bearing No. BE-176, Hari Nagar, New Delhi and therefore having an alternative place to do business, the appellant/defendant was asked to vacate the premises but he failed to do so whereupon the subject suit for possession was filed.

(3.) The appellant/defendant laid two defences before the trial Court. The first defence was that the respondent/plaintiff had purchased a plot of 100 sq. yds. within the same municipal number of the property i.e. in BE-306 (in addition to the suit plot which again is on the same municipal number and which is of 50 sq. yds.), and, this plot of 100 sq. yds. was actually purchased out of the funds which were got by the respondent/plaintiff from the sale of the property bearing No. 3/106, Subhash Nagar, Delhi which belonged to the father of the parties. It was pleaded that under an agreement/settlement, appellant/defendant was to retain the subject shop for not claiming any share in the property being plot of 100 sq. yds. which was said to have been purchased from the joint/common funds available at the time of sale of quarter No. 3/106, Subhash Nagar, Delhi belonging to the father of the parties. An alternative plea of adverse possession was also set up.