SANJAY BANSAL Vs. TARA CHAND AGGARWAL

JUDGEMENT

(1.) RESPONDENT is appellant's elder brother. Respondent - plaintiff filed a suit for possession and recovery of damages/mesne profits against the appellant - defendant before the trial court, wherein decree of possession has been passed vide judgment and decree dated 29th May, 2014, which has been impugned in this appeal. Relief of mesne profits has been declined by the trial court.

(2.) RESPONDENT alleged in the plaint that he was a member of Naveen Cooperative Group Housing Society Ltd. ("the Society", for short). The Society constructed residential flats on Plot No. 13, Sector No. 5, Dwarka, (Pappan Kalan), New Delhi. Respondent was allotted flat No. A -402 (hereinafter referred to as "flat in question") in the draw of lots conducted by the officials of Delhi Development Authority and Registrar Cooperative Societies on 19th April, 2000. Physical possession of the flat was handed over to the respondent soon thereafter. In the month of April, 2001 respondent allowed the appellant to use and enjoy the flat in question on licence basis and without payment of any licence fee. Subsequently, behaviour of appellant became hostile towards the respondent. Accordingly, respondent revoked the licence vide notice dated 1st July, 2002 sent through a lawyer by way of registered AD post, thereby called upon the appellant to handover physical possession of the flat in question to respondent, on or before 19th July, 2002. It was further stated therein that in case flat in question was not vacated, appellant shall pay damages @ Rs. 500/ - per day. Appellant did not vacate the flat in question; instead he threatened that he would sell the flat in question to a third party, hence the suit.

(3.) IN the replication, respondent denied the contents of written statement and reiterated the averments made in the plaint. It was denied that respondent had adopted the appellant on 17th October, 1986. It was alleged that as on 17th October, 1986 appellant was above the age of 15 years, thus, under the law of adoption alleged adoption, otherwise was not legal and valid. Respondent alleged that flat in question was his self acquired property. It was denied that family settlement, as pleaded by the appellant, ever took place. Respondent also took a plea that house at Padam Nagar was a joint family property and respondent had no right to permit or disallow the appellant to occupy or leave the said house. Regarding document dated 28th April, 2001, it is alleged that respondent was suffering from heart -problem in the year 1996 and was not able to manage his sole proprietorship business, thus, had entrusted the affairs of his sole proprietorship business run in the name and style of M/s. Shyam Lal Pawan Lal to his brother Shri Babu Lal, who in collusion with appellant misappropriated the funds of the said business and obtained the document dated 28th April, 2001 from the respondent by playing fraud and undue influence.