MANSA RAM Vs. SOHAN SINGH

JUDGEMENT

(1.) This regular second appeal had been filed by Shri Mansa Ram (since dead) against the judgment and decree dated 2M.2.1973 of a learned Addl-District Judge, Delhi by which he reversed the judgment and decrce dated 16.5.1968 of a learned Sub Judge, 1st Class in suit No. 98/66. The Sub Judge had granted a decree for possession of the suit premises as described in the site plan Ex. PW5/1, which was reversed by the first Appellate Court. During the pendency of this appeal for more than two decades all the three parties died and their legal representatives were brought on record.

(2.) The suit initially filed is based on the allegations that the plaintiff was a refugee from Lahore, and came to India in 1948, and took possestion of Nazul plot 435 No. 62 measuring 325 sq.yards belonging to Delhi Improvement Trust (since vested in Delhi Development Authority) situated in Mohalla Ara Kashan, Paharganj. New Delhi. He constructed four rooms, bath room, kitchen and a Verandah. He claims that his possession had been regularised on payment of damages to DDA. He also continued to pay the house tax in respect of this property. In 1949 deceased defendant No. 2 i.e. Charan Dass who was related to him as maternal uncle approached him for accommodation because he was being compelled by a PWD employee, in whose quarter he was living, to vacate that quarter and so he accommodated him in the premises in dispute. It is further alleged that he lived in this house upto 5.5.1962 because he had constructed another house for himself and shifted there. He, however, did not hand over the possession to Mansa Ram and rather handed over the same In his nephew Niranjan Singh. After great persuasion, Niranjan Singh gave vacant possession of the disputed premises to Mansa Ram on 10.5.1962. Charan Dass got enraged on coming to know of this fact, and he in conspiracy with his nephew Niranjan Singh and Sohan Singh, with the help of 7- 8 more persons attempted to take forcible possession on 22.5.1962, but then succeeded in his designs on 25.5.1962 in the absence of Mansa Ram who had gone to see his ailing uncle. But on 25.5.1962 Sohan Singh, deceased, defendant No. I took forcible possession of the disputed premises. There were proceedings under Sections 107/151 and also under Sections 145/146 Code of Criminal Procedure between the partics. The present suit was filed by the deceased on 4.3.1966 for possession.

(3.) Both the deceased defendants contested the suit. Charan Dass deceased, the maternal uncle of the plaintiff-appellant had claimed that actually he himself had constructed the house and Mansa Ram had nothing to do with that property. He further said that he had inducted Sohan Singh deceased, respondent No. I as a tenant. The case of Sohan Singh was also to the effect that he was a tenant of Charan Dass. Charan Dass had also raised an issue that the suit was time barred. Pleadings of the parties were incorporated in following issues by the learned Trial Court. 1. Whether the plaintiff is the owner of the suit property? OPP 2. Whether the suit is bad for misjoinder of any party? OPD 3. Whether the suit is properly valued? If not, what is the proper valuation? OPP 4. Whether the defendant No. 2 was a licensee under the plaintiff? If so, to what effect? OPP 5. Whether the defendant No. I is a tenant under defendant No. 2.? If so, to what effect? OPD No. 1. 6. Whether the suit is within time? OPP 7. Relief. Learned Trial Court after consideration of eivdence and inspection of the-spot came to the following conclusions: 436 (1) The land underneath the disputed portion and that of the plaintiff's portion is owned by the Delhi Development Authority. (2) The plaintiff has been paying the damages to the DDA in respect of plot No. 62 measuring 108 sq.yards. vide Ex. P3 to P8. The demand was made by the DDA vide Ex. PI and P2. The area on the spot of the disputed portion plus the portion in occupation of the plaintiff comes to 108 sq.yards. (3) The Municipal number given to the entire premises including the disputed one is 8652 and the plaintiff has been paying house tax / property tax to the Municipal Corporation vide Ex. P9. (4) The disputed portion abuts on the passage which opens towards the lane from that portion which is in the occupation of the plaintiff. (5) The masonry, design of construction and the design of doors, windows and sun shades of the disputed portion was found exactly the same which is of the portion in the occupation of the plaintiff. (6) The defendant No. 2 is a maternal uncle of the plaintiff.