SHRI PHOOL SINGH v. SH. MAMAN & ANR.

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 2014:DHC:1210 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 Suit was filed on 4.12.03 but the same was withdrawn by the plaintiff by moving an application under Order 23 Rule 1 CPC on 10.08.05 and thereafter the plaintiff filed the present suit on 06.09.06.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 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