Delhi High Court
Shri Phool Singh vs Sh. Maman & Anr. on 5 March, 2014
Author: Valmiki J. Mehta
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA No. 70/2014
% 5th March, 2014
SHRI PHOOL SINGH ......Appellant
Through: None.
VERSUS
SH. MAMAN & ANR. ...... Respondent
Through: None.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA
To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This regular second appeal is filed by the plaintiff against the
concurrent judgments of the courts below; of the trial court dated 25.8.2011
and the first appellate court dated 24.10.2013; dismissing the suit for
possession filed by the appellant-plaintiff.
2. The appellant claimed to be the owner of a house situated in Lal Dora
of Village Shikarpur, Delhi shown in the site plan Ex.PW1/1 and which is
the suit property. Plaintiff claimed that the defendants being relatives were
allowed to stay as licencees in the suit property, but when they refused to
vacate the suit property in spite of being repeatedly asked to do so, the
RSA 70/2014 Page 1 of 3
subject suit for possession came to be filed. Respondents-defendants
disputed the ownership of the plaintiff. It was pleaded that the parents of the
defendants were owners and they have built the property. It was accordingly
prayed that the suit for possession be dismissed.
3. Both the courts below have held that the appellant has failed to prove
his ownership of the suit property. The first appellate court has effectively
and crisply summarized the position in para 13 of the impugned judgment
and which reads as under:-
"13.After hearing the arguments and going through the record, I
found that admittedly the property is situated in Laldora and
both the defendants are residing in the suit property since 1950.
The case of the plaintiff is that he is the owner as he got the
right in the property through his ancestors as has come in
evidence that the ancestors of the plaintiff shifted to this village
from Brij Wasan and some land was given to them by villagers.
It was for the plaintiff/appellant to establish that the suit
property is situated on the same land which was gifted to the
forefather of the plaintiff but no such evidence is brought on
record. It has come in evidence that defendants have raised
construction in the premises and the plaintiff or his brothers
never raised objection to the same. Sultan Ahmad, cousin of
the plaintiff also filed the suit for possession. No doubt
plaintiff was not a party to that. Both these defendants along
with one more person Sh. Raj Kumar brother of the defendants
herein were also party. Suit was filed on 4.12.03 but the same
was withdrawn by the plaintiff by moving an application under
Order 23 Rule 1 CPC on 10.08.05 and thereafter the plaintiff
filed the present suit on 06.09.06. Trial court has rightly
observed that plaintiff has failed to establish his right in the suit
property as admittedly it being situated in the Laldora, there are
RSA 70/2014 Page 2 of 3
no documents of ownership but it was to be proved on the basis
of preponderance of probability that it was the plaintiff who got
the right which the plaintiff/appellant failed. On the other hand
defendants have established their right of possession since
1950. Then they are having electricity and water connection
and also raising the construction." (underlining added)
4. In view of the fact that the appellant-plaintiff failed to prove
ownership of the suit property, and the onus being squarely upon the
appellant who was the plaintiff in the suit for possession, the suit for
possession was rightly dismissed.
5. No substantial question of law therefore arises under Section 100 CPC
for this regular second appeal to be maintainable, and therefore, the same is
dismissed, leaving the parties to bear their own costs.
MARCH 05, 2014 VALMIKI J. MEHTA, J.
ib
