SANGAM LAL Vs. NIRMAL KUMAR AGRAWAL & ANR.

JUDGEMENT

(1.) This Regular First Appeal under Sec. 96 of Code of Civil Procedure, 1908 (CPC) impugns the judgment and decree of the trial Court dated 23.8.2008. By the impugned judgment and decree, the trial Court decreed the suit for partition, possession and permanent injunction filed by the respondent No. 1/plaintiff with respect to the suit property being House No. 49, Shanti Vihar, I.P. Extension -2, Karkardooma, Delhi constructed on a plot admeasuring 180 sq. yds. The appellant who is the brother of the respondent No. 1/plaintiff was the defendant No. 1 in the suit and was the only person who contested the suit. The respondent No. 2 herein, the other brother, was the defendant No. 2 in the suit, supported the case of the respondent No. 1/plaintiff.

(2.) The case set up by the respondent No. 1/plaintiff was that he and the respondent No. 2 had contributed the monies towards the purchase of the suit plot with respect to a perpetual sub -lease deed which was executed and registered on 2.4.1979 in favour of the appellant/defendant No. 1. It was stated that since the monies were paid by the respondent No. 1/plaintiff and respondent No. 2, the appellant/defendant No. 1 executed and registered on 16.12.1982 a gift deed in favour of the respondent No. 1/plaintiff and the defendant No. 2/respondent No. 2 giving 1/3rd ownership rights in the suit plot to the respondent No. 1/plaintiff and respondent No. 2/defendant No. 2. It was further the case of the respondent No. 1/plaintiff in the plaint that mutation of the suit property was also done in favour of all the three brothers by the Delhi Development Authority (DDA) vide DDA's letter dated 21.2.1983. The respondent No. 1/plaintiff also claimed to have paid monies towards construction of the premises alongwith respondent No. 2/defendant No. 2. Whereas the respondent No. 1/plaintiff paid a sum of Rs. 55,500/ -, the defendant No. 2 had paid Rs. 1,20,450/ -. It was further the case of the respondent No. 1/plaintiff in the plaint that all the three brothers jointly applied for conversion of the property from lease hold to free hold vide their application dated 31.3.1993 and the DDA had executed and registered the conveyance deed of the suit property in favour of all the three brothers on 12.8.1994. The respondent No. 1/plaintiff stated that when he came to Delhi on 14.9.2003, the attitude of the appellant/defendant No. 1 had changed and when the respondent No. 1/plaintiff asked for partitioning of the property, the appellant/defendant No. 1 refused, whereupon a legal notice was sent and ultimately the subject suit came to be filed.

(3.) The appellant/defendant No. 1 in the written statement firstly claimed that the gift deed was in fact a sale and therefore bad in law. It was further claimed that all the documents; whether it be the gift deed or the conveyance deed or the letters issued by him to the DDA for mutation in the joint names of all the three brothers or for issuing of conveyance deed in the joint names of all the three brothers; were got executed on account of fraud, undue influence and deception. The appellant/defendant No. 1 pleaded that he was the sole owner of the property. It was also claimed that the property cannot be transferred in the name of the respondents inasmuch as they were not the members of the society and anyone who was not a member of the society could not be the owner of the property. It was further pleaded that the appellant/defendant No. 1 had agreed to sell 1/3rd share of the property to each of the two brothers/respondents but the respondents had stated that execution of the sale deed would be costly and therefore a gift deed was executed for consideration. It was claimed that the appellant/defendant No. 1 did not receive the balance consideration which was agreed to be paid considering the market value of the house and therefore the gift deed was bad. It was also pleaded that the appellant/defendant No. 1 had taken certain loans from the two brothers and in consideration of which the gift deed was executed because the appellant/defendant No. 1 was unable to repay the loans. It was therefore prayed by the appellant/defendant No. 1 that the suit be dismissed.