MAHENDER KUMAR & ORS. Vs. SURINDER KUMAR

JUDGEMENT

(1.) This Regular Second Appeal under Section 100 of Code of Civil Procedure, 1908 (CPC) is filed by the defendants in the suit impugning the concurrent judgments of the courts below; of the Trial Court dated 2.12.2013 and the First Appellate Court dated 14.9.2016; by which the suit filed by the respondent/plaintiff was decreed for possession of the suit property bearing no.D-99, Dakshin Puri, New Delhi.

(2.) The subject suit was filed by the respondent/plaintiff pleading that he was the exclusive owner of the suit property. The suit was instituted by the respondent/plaintiff through his wife Smt. Sobha as his attorney. It is pleaded that the appellant no.1/defendant no.1 was the younger brother of the respondent/plaintiff and out of love and affection the respondent/plaintiff had allowed the appellant no.1/defendant no.1 and his family to stay in the suit premises as licencees. It is further pleaded in the plaint that the respondent/plaintiff when he asked the appellants/defendants to vacate the suit property, they failed to do so, and therefore respondent/plaintiff sent a legal notice dated 25.2.2006, and whereafter the subject suit was filed.

(3.) The main defence of the appellants/defendants was that the suit was not maintainable as the suit property is an HUF property and it was allotted by the DDA in favour of the father of the respondent/plaintiff and also the appellant no.1/defendant no.1 in lieu of the removal of a jhuggi/hutment. It was pleaded that the suit property was constructed exclusively by the appellant no.1/defendant no.1 from his own funds and that his family is in possession of the suit property since the date of allotment. As per the written statement of the appellants/defendants there were two properties being D-98 and D- 99 which were constructed as one property and having one staircase.