Delhi High Court
Shri Ajit Kumar vs Raj Kumar Alias Paua on 4 March, 2011
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RFA No.606/2001
% 4th March, 2011
SHRI AJIT KUMAR ...... Appellant
Through: Mr. S.S. Gautam, Advocate
VERSUS
RAJ KUMAR ALIAS PAUA ...... Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
1. Whether the Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in the Digest?
VALMIKI J. MEHTA, J (ORAL)
1. This case is on the 'Regular Board' of this Court since 17.1.2011.
Today, it is effective item No.13 and though it is 12.20 P.M nobody has
chosen to appear for the respondent. I have, therefore, heard the counsel
for the appellant and perused the record and am proceeding to dispose of
the appeal.
2. The challenge by means of this Regular First Appeal under
Section 96 of the Code of Civil Procedure, 1908 (CPC) is to the impugned
judgment and decree dated 14.9.2001 which has dismissed the suit of the
RFA No.606/2001 Page 1 of 3
appellant/plaintiff for possession of one shop forming part of the premises
No.4216, Gali No.5, Tri Nagar, Delhi. The appellant/plaintiff relied upon the
Will dated 21.1.1991 executed in his favour by his grandfather Chander
Bhan. The defendant relied upon the subsequent Will dated 25.8.1991 in
favour of one Sh. Suresh Chand and others. The defendant claimed to be an
employee of Suresh Chand. The trial Court in the impugned judgment and
decree has referred to the probate proceedings initiated on the basis of the
Will dated 21.1.1991 Ex.PW3/1 relied upon by the appellant/plaintiff however
the trial court has held that the appellant/plaintiff failed to prove the
possession on the disputed date i.e. 18.10.1994 and the suit was therefore
dismissed.
3. In my opinion, the impugned judgment and decree is clearly
illegal because once the title to a property is set up, entitlement of
possession is not based on prior possession which is an issue under Article
64, but the suit falls under Article 65 as per which possession is claimed on
the basis of title. The subject suit was, therefore, governed under Article 65
of the Limitation Act, 1963. The counsel for the appellant during the course
of hearing filed before me the certified copy of the judgment in the probate
case bearing No.6/1998 titled as Vimla Devi (deceased) through LRs &
Another Vs. State & Others and to which Sh. Suresh Chand was a party
and in which proceedings he had also set up the Will dated 25.8.1991 in his
favour. The probate case No.6/1998 has been decided in favour of the
appellant and Smt. Vimla Devi by the judgment of this Court dated 3.12.2010
RFA No.606/2001 Page 2 of 3
whereby letters of administration have been granted with respect to the Will
dated 21.1.1991 of late Sh. Chander Bhan. Therefore the appellant/plaintiff
was clearly the owner of the suit premises and entitled to possession of the
subject shop.
4. Accordingly, the appeal is accepted. The impugned judgment
and decree is set aside. The suit of the appellant/plaintiff for recovery of
possession is decreed with respect to the shop which was earlier in
possession of the respondent Sh. Raj Kumar and now in the possession of Sh.
Suresh Chand, forming part of property bearing No. No.4216, Gali No.5, Tri
Nagar, Delhi. Decree sheet be prepared.
It is clarified that the present decision is subject to a decision or
any orders being passed by the Appellate Court in an appeal which may be
filed against the judgment dated 3.12.2010 in probate case No.6/1998 titled
as Vimla Devi (deceased) through LRs & Another Vs. State & Others.
Trial Court record be sent back.
March 04, 2011 VALMIKI J. MEHTA, J.
Ne
