VIJAY LAXMI GUPTA Vs. SURESH KUMAR PURI

JUDGEMENT

(1.) This Regular First Appeal under section 96 of the Code of Civil Procedure, 1908 (CPC) is filed by the plaintiff/daughter/sister impugning the judgment of the trial court dated 19.11.2005 by which the trial court has dismissed the suit for possession and injunction filed by her with respect to a portion of the property bearing no. 8646 and 8651 Gau Shala Marg, Double Phatak Road, Bagh Rao Ji Ward-16, Delhi-6. The property as a whole is hereinafter referred to as the subject property.

(2.) As per the plaint appellant/plaintiff pleaded that the entire property at Gau Shala Marg was absolutely owned by her father Sh. G.S. Puri who died intestate on 5.2.1976. The mother of the appellant/plaintiff and wife of Sh. G.S. Puri, namely, Smt. Pushpawati Puri also died intestate at Delhi on 29.2.2000. It was pleaded that in Nov., 1997 there was an oral partition/settlement whereby a portion on the ground floor of the subject property, shown in black colour in the site plan annexed to the plaint comprising of three rooms, kitchen, bathroom, verandah, open space as also the terrace at the first floor was given to the appellant/plaintiff as her share of the property, hereinafter referred to as the suit property. It was further pleaded in the plaint that possession of the suit property was illegally taken over by the defendants and hence the suit was filed. Appellant/plaintiff also pleaded that she had got her name mutated with the Delhi Development Authority (DDA) on 12.12.1997 and this was informed to her by the Tehsildar Nazrul vide letter dated 22.9.1998 that the mutation has been done vide mutation no. 9082 dated 22.9.1998. Accordingly, the suit was prayed to be decreed with the following reliefs:-

(3.) There were a total of six defendants in the suit and which six defendants are the brothers of the appellant/plaintiff. These defendants are also the respondents in the present appeal. All the defendants except defendant no. 3 disputed the case of the plaintiff and prayed for the suit to be dismissed. Defendant no. 3/Sh. Rakesh Kumar Puri, respondent no. 3 in this appeal, had filed a written statement and had also given evidence supporting the appellant/plaintiff that the suit be decreed as prayed by the appellant/plaintiff. The other defendants being defendant nos. 1, 2, 4, 5 and 6 (hereinafter referred to as the contesting defendants/respondents) filed their written statement and contested the suit. It was pleaded that the subject property had no longer remained the individual property of the father late Sh. G.S. Puri, inasmuch as, the father late Sh. G.S. Puri in the year 1965 had formed an HUF being Sh. G.S. Puri Hindu Undivided Family (HUF), and had put the subject property in the common hotchpotch of HUF. It was pleaded that Sh. G.S. Puri had not died intestate but he had left his Will dated 21.9.1975 and whereby he had given his ? ..?th share in the subject property, being his share of the HUF property, in favour of his wife Smt. Pushpawati Puri i.e mother of the parties. It is also pleaded in the written statement that the mother of the parties Smt. Pushpawati Puri had executed Will dated 22.9.1997 whereby she bequeathed her ?th share in the subject property (? ..?th share received by her as a member of HUF on the death of Sh. G.S. Puri and another ? ..?th share received being the share of Sh. G.S. Puri under his Will dated 21.9.1975) in favour of her sons being the defendants in the suit. It was thus pleaded that the sons who are the defendants in the suit became ? ..?th owners each of the subject property. The defendants denied that any oral partition or settlement had taken place as regards the subject property in Nov., 1997 as was pleaded by the appellant/plaintiff. The defendants also pleaded that the mutation if carried out in favour of the appellant/plaintiff in the records of DDA is illegal because this mutation was done without any notice to the defendants.