ABDUL WAQAR & ANR Vs. ABDUL GAFFAR

JUDGEMENT

(1.) Vide the impugned judgment and decree dated 3 rd November, 2016, the suit for possession filed by Sh. Abdul Gaffar (hereinafter "Plaintiff") has been decreed by the Trial Court. The present appeal impugns the same.

(2.) Sh. Abdul Gaffar filed a suit seeking decree of possession and damages/mesne profits in respect of First Floor of property bearing no. D53/3A, Gali No.18, Chauhan Bangar, Seelampur, Delhi-110053 (hereinafter "suit property") against his brothers Sh. Abdul Waqar and Sh. Nawab Ahmed. It is the case of the Plaintiff that he purchased the entire property of 150 sq. yards from the previous owner on 12th September, 1979. It is pleaded that both the brothers are living in the First Floor of the property as licensees. He terminated the license vide notice dated 17th July, 2009, but since the Defendants refused to vacate the premises, he filed the suit for possession. In the plaint it was averred that the Defendants had earlier filed two suits for injunction being 123/2009 which was dismissed on 13th May, 2009 and 191/2009 in 13th July, 2009.

(3.) In the Written Statement, the Defendants averred that the Plaintiff is not a resident of the suit property, but is a resident of H.No.1270, Gali no. 2, Nurani Masjid, Chauhan Banger, Seelampur, Delhi, 11005 It is further averred that the Defendants are living in the First Floor but also have possession of the Ground Floor. The Defendants pleaded that the suit property was purchased by the parents, though in the name of the Plaintiff, and it was meant for the benefit of whole of the family. The factory which was running on the Ground Floor belonged to the entire family and various properties were purchased from the same, however, the Plaintiff has grabbed the same to their exclusion. It was further claimed that on 28th June, 2008, Defendant No.1 - Sh. Abdul Waqar purchased the Ground Floor of the property from Sh. Abdul Gaffar for a consideration of Rs.12 lakhs. It was also averred that the entire First Floor was also purchased by the Defendants, and GPA, Will, Agreement to Sell, Possession Letter and Receipt were executed by the Plaintiff. The Trial Court framed issues on 6th April, 2011. An interim injunction was also granted restraining the Defendants from creating any third-party interest by way of sale or parting with possession of the suit property. Issues framed in the suit are as under:-