JAI PRAKASH Vs. ANOOP SINGHAL

JUDGEMENT

(1.) This Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) is filed by the plaintiff in the suit impugning the judgment of the Trial Court dated 30.10.2017 by which trial court has dismissed the suit filed by the appellant/plaintiff seeking recovery of possession and mesne profits with respect to the suit property being half portion of shop on the ground floor, one room with bathroom and kitchen on the first floor and one room kitchen, bathroom on the second floor as shown in red colour in the site plan filed with the plaint which has been exhibited as Ex.PW1/1. The appellant/plaintiff is the father of the respondent/defendant.

(2.) The facts of the case as pleaded by the appellant/plaintiff are that the suit property was originally owned by his father Sh. Badri Prasad who died intestate. At this stage, I would like to note that it is agreed by both the parties before this Court that the father of the appellant/plaintiff Sh. Badri Prasad died intestate in the year 1984. The case of the appellant/plaintiff was that legal heirs of Sh. Badri Prasad i.e he and the other children of Sh. Badri Prasad have orally partitioned the entire property, of which suit property forms a part, whereby the suit property fell to the share of the appellant/plaintiff. It was pleaded that on 11.5.2012 the appellant/plaintiff came to know that respondent/defendant has stolen his passbook, cheque book and documents pertaining to his property bearing no. RZ 16D, Indra Park, Gali No.5, Palam Colony, New Delhi and when the appellant/plaintiff demanded these documents from the respondent/defendant the respondent/defendant thrashed the appellant/plaintiff and his wife out of the house and since when they are residing with another son of the appellant/plaintiff at Mohan Garden. By a legal notice dated 3.7.2012, the appellant/plaintiff pleaded to have terminated the licence of the respondent/defendant to which reply was given by the respondent/defendant on 10.7.2012, and thereafter the subject suit for possession and mesne profits was filed.

(3.) The respondent/defendant contested the suit. In his written statement the respondent/defendant pleaded that it was not in his knowledge that the legal heirs of Sh. Badri Prasad mutually divided the entire property among themselves orally. It was however admitted that the suit property fell to the share of the appellant/plaintiff on partition. It was however pleaded that the respondent/defendant had left his job on 15.5.2012 at the request of the appellant/plaintiff and thereafter he has been running the shop. It was denied that the respondent/defendant had stolen any pass book or cheque book with respect to Palam Colony property. At this stage, this Court would like to note that in the written statement filed by the respondent/defendant there is no plea of existence of a Joint Hindu Family/Hindu Undivided Family which owned the suit property i.e there is no pleading by the respondent/defendant that there was an HUF consisting of the respondent/defendant and the appellant/plaintiff and which is being stated because respondent/defendant has led evidence and urged before the trial court as also this Court that the suit property is a Joint Hindu Family property/HUF property. It is also required to be noted that respondent/defendant claimed in his evidence that he has spent moneys on the suit property and hence was an owner but once again in the written statement there is no such pleading of the respondent/defendant having rights in the suit property on account of respondent/defendant making payments for construction on the suit property.