VIMLA GAUTAM Vs. MOHINI JAIN

JUDGEMENT

(1.) The challenge by means of this Regular First Appeal (RFA) under Section 96 of Code of Civil Procedure, 1908 (CPC) is to the impugned judgment of the trial Court dated 27.10.2007 decreeing the suit of the respondents/plaintiffs for possession and mesne profits with respect to the suit property bearing No.F-274, Abadi of Janta Garden, Pandav Nagar, Patparganj, Delhi admeasuring 200 sq. yds.

(2.) The facts of the case are that the respondents/plaintiffs claimed to be owners of the suit property inasmuch as the suit property was said to belong to their mother Smt. Indira Kumari Jain who died on 2.11.1996. Smt. Indira Kumari Jain is said to have executed a Will dated 9.4.1991 with respect to the suit property in favour of the respondents/plaintiffs-daughters. Smt. Indira Kumari Jain is said to have purchased rights in the suit property by means of usual documents being registered power of attorney dated 17.4.1986; Ex.PW1/3, a receipt for a sum of Rs. 15,000/-; Ex.PW1/4, an agreement to sell dated 17.4.1986; Ex.PW1/5 and an affidavit dated 17.4.1986; Ex.PW1/6. Sh. Birender Kumar Jain from whom Smt. Indira Kumari Jain, mother of the respondents/plaintiffs purchased the suit property is said to have purchased the property by means of a registered sale deed dated 11.7.1966; Ex.PW1/2 from one Smt. Raj Kumari Bhatnagar. Smt. Raj Kumari Bhatnagar had purchased the suit property from Delhi Housing Company vide registered sale deed dated 20.8.1959, Ex.PW1/1. The respondents/plaintiffs employed a Chowkidar, namely, Dildar Hussain alias Chunnu to look after the suit plot who was also residing in the suit plot alongwith his family members. This Chowkidar in breach of trust made some forged documents such as the power of attorney in collusion with the defendants and thereafter on 9.3.1994 under the power of attorney first executed certain documents and thereafter gave possession of the land to the defendants. An injunction suit therefore came to be filed by Smt. Indira Kumari Jain seeking permanent injunction against the defendants and which suit was filed on or around 4.8.1994. In this suit, Smt. Indira Kumari Jain made a statement through her Advocate that defendants will not be dispossessed without due process of law and therefore the suit for injunction was withdrawn on 8.4.1999 with liberty sought from the Court to claim the relief sought in the said suit, in the present suit for possession and mesne profits which was already filed on behalf of respondents/plaintiffs. The respondents/plaintiffs also prayed for mesne profits in the suit, and which relief of mesne profits has been granted alongwith the relief of possession by the impugned judgment and decree.

(3.) The appellants were the defendants in the suit and who contested the suit firstly on the ground that they were owners of the suit property by means of the documents executed in their favour by one Sh. Shafiq Raja. The documents which were sought to have been executed in favour of the defendants were agreement to sell dated 9.3.1994; Ex.DW2/1, general power of attorney dated 9.3.1994; Ex.DW2/2, receipt dated 9.3.1994 for a sum of Rs. 3,80,000/-; Ex.DW2/3 and an affidavit, Ex.DW2/4. The appellants/defendants also claimed that the subject suit was barred by provision of Order 2 Rule 2 CPC. As already stated that disbelieving the defence, suit was decreed.