SURMDER NATH Vs. HARDIT SINGH

JUDGEMENT

(1.) This is a second appeal by the defendant against the judgment and decree by the courts below by which the suit of the plaintiff for possession has been decreed and decree for Rs. 1,260.00 being amount for 3 years prior to the suit at the rate of Rs. 35 per month has also been passed in favour.

(2.) The property in dispute is plot No. 7, Block No. 3 Original Road, Paharganj, New Delhi. There is no dispute-about 2/3rd portion of the area which is admittedly said to be belonging to the plaintiff. The dispute is limited to l/3rd portion of the said plot. In 1940, one Chandu purchased leasehold rights of the plot in dispute, from Delhi Improvement Trust. Chandu leased it out it one Sohan Lal. In 1947, Chandu filed a suit against Sohan Lal and obtained an expart decree for possession. When he, however, sought to execute the decree, Shiv Lal, the father of appellants I and 3 and husband of appellant no. 2 resisted the execution, on the ground that he was in possession in his own right. Chandu moved an application under Order 21 rule 97 of the Code of Civil Procedure but the same was dismissed on 18th January, 1954. His suit filed against the respondent under Order 21 Rule 103 Civil Procedure Code was also dismissed on 30th August, 1954, Chandu also failed in appeal before the lower appellate court. The second appeal was filed in this Court which was later on not pursued and was dismissed on 30th March, 1959.

(3.) Shiv Lal died on 16th May, 1961. On 12th June, 1962, this suit was filed for possession in which it was pleaded that Sohan Lal after the decree for ejectment against him inducted Shiv Lal, the father of the defendants and efforts to take possession under Order 21 Rules 97 and 103 Civil Procedure Code had failed as it was held that the objectors were not liable to ejectment in that decree. It was mentioned in para 4 that defendant's father come into possession of the portion of the plot after the decree against Sohan Lal and he was in possession as a trespasser, and that he had no right or title in that part of the ot in dispute and a decree for possession was prayed for. Appellant No. 1 Surinder Nath took the plea that he has become absolute owner of the property by prescription and that he has been consistently in possession without attorning to any one since 1947. The case put forward by ths defendant was that the land was lying vacant in 1927 and that Hardit Singh plaintiff and the appellant defendant No. 1's father took possession of 2/3rd and l/3rd of land respectively. It was again reiterated that the application under Order 21 Rule 97 and suit under Order 21 Rule 103 Civil Procedure Code were rightly dismissed as the defendant was occupying the plot in their own right. The following issues were framed :-