ARJAN DEV Vs. OM PARKASH

JUDGEMENT

(1.) This is an appeal by the defendant against the judgment and decree dated 6 July 1991 of the Additional District Judge whereby the suit of the plaintiff for possession and for damages amounting to Rs.2,250.00 was decreed being the mesne profits from the date of notice till date of filing of the suit with proportionate costs. The defendant was further directed to pay future damages at the rate of Rs. 500.00 per month w.e.f. 9 March 1987 till the date of decree amounting to Rs.26,000.00 and covering the period up to 8 July 1991 provided the plaintiff makes up the deficiency in court fee. It was also ordered that the defendant shall pay further mesne profits till the date he vacates the suit property.

(2.) The plaintiff filed the suit for recovery of possession and mesne profits amounting to Rs. 18,000.00 against the defendant who is his younger brother. The plaintiff said he was the owner of property bearing No.4D/37, Old Rajinder Nagar, New Delhi, which he had purchased from the Ministry of Rehabilita- tion, Government of India, New Delhi. A perpetual lease deed respecting the land underneath was executed in his favour on 22 January 1970 and was duly registered. A supplemental deed conveying the property was also executed in his favour on 29 May 1973 which was said to be effective from 1 January 1954. The plaintiff said his mother, his two other brothers one of them being the defendant and three sisters migrated from Pakistan to India at the time of partition of the country when the plaintiff himself was employed in the Indian Navy and was posted at Singapore; He said on his request the aforesaid property was allotted to him by the Naval Headquarters he being in the employ- ment of defence forces. He said rent of this property was being paid by his mother to whom he used to send money. The defendant at that time was a minor and was staying with his mother and so also the sisters. The other brother is elder to the plaintiff. He was not staying in this house. The mother of the parties died in 1964. The plaintiff was married in 1964 and the defendant in 1966. After the marriage of the defendant, it appears, certain disputes arose in the family. The defendant separated his kitchen as earlier all the family members were having a common kitchen. The plaintiff sought a voluntary retirement from the Navy in the year 1959 and then settled in Delhi. The defendant at the time of filing the suit was in occupation of one room measuring 8' x 12' and a kitchen measuring 8' x 8' in the property in question. The plaint also recites that when the family migrated from Pakistan a compensation of Rs. 61,466/ - was passed in lieu of the properties left by the deceased father of the parties in Pakistan. This amount was separated into four shares, i.e. the mother and three sons, each one getting his separate amount in cash from the Ministry of Re- habilitation. Plaintiff said he was the sole owner of the property in question. He served a notice on the defendant to vacate the portion in his occupation. The defendant did not do so. The plaintiff also claimed damages for the past three years at the rate of Rs. 1,000.00 per month. Since the defendant did not comply with the notice the plaintiff filed this suit claiming possession as well as seeking re- covery of damages at the rate of Rs. 500.00 per month for the last three years. He valued the suit property at Rs.33,000.00.

(3.) Defendant in his written statement said that the suit property was not properly valued and that the court of the Additional District Judge had no jurisdiction to try that suit. He denied the case set up by the plaintiff. He said plaintiff was not the owner and that the property was a joint family property of all the legal heirs of their late father as the property had been purchased / acquired out of the compensation pool. Defendant said plaintiff was only a co-sharer in the said property to the extent as provided under the Hindu Succession Act. He said the plaintiff was in fact unable to pay anything towards price of the property as he was drawing a meagre. salary and indulged in various vices and could not save anything and it was their mother who was running the household from the savings of their deceased father and also from the earnings of their sister Kaushalya who was then employed as a teacher. Defendant said he was in occupation of the property in his own right. He, therefore, denied that he was a licensee. The defendant admitted that he got claim of Rs. 5,081 / - out of the claim accepted by the Department of Rehabilitation respect- ing the properties left by his deceased father in Pakistan. He, however, said he gave his share to his mother for the marriage of his sister and while the claim of the plaintiff was adjusted against the suit property some amount from the claim of the mother was also adjusted towards value of this property. He, therefore, said that it was a joint property of all the legal heirs of his deceased father. Defendant then said that the entire cash received against his share of claim by his eldest brother Sriniwas Seth was also given by him to their mother for the wedding of their sister Damyanti which took place in March 1956. Defendant said that separate claim was made by all the legal heirs in order to get more cash by way of compensation. The defendant lastly raised the plea of his becoming owner by way of adverse possession. To the written statement the plaintiff filed his replication. On the pleas, thus, raised the court framed the following issues: