Valmiki J. Mehta JUDGMENT
Valmiki J. Mehta, J.
1. This Regular Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) is filed by the defendant in the suit impugning the concurrent judgments of the courts below; of the Trial Court dated 30.6.2015 and the First Appellate Court dated 10.11.2015; by which the courts below have decreed the suit for possession with respect to the property being Plot No. 34, Sector 16A, Pocket 2 and 3, Dwarka, New Delhi (hereinafter referred to as 'the suit property'), and as reflected in the site plan Ex. P.W. 1/2. It is required to be noted that when the suit was filed original plaintiff Sh. Mahngu Ram was alive. Sh. Mahngu Ram died during the pendency of the suit and the present respondent No. 1 was substituted as the legal heir of Sh. Mahngu Ram in terms of the Will of Sh. Mahngu Ram dated 7.3.2011. Appellant/defendant was pleaded by Sh. Mahngu Ram to be a licensee in the suit property and who was allowed to stay in the suit property belonging to the plaintiff Sh. Mahngu Ram and since the appellant/defendant failed to vacate the suit property inspite of termination of licence, and the appellant/defendant along with his wife threatened aged Sh. Mahngu Ram hence the subject suit for possession had been filed.
2. The facts of the case are that admittedly Sh. Mahngu Ram was the owner of the suit property. The case of the plaintiff Sh. Mahngu Ram was that he and his wife did not have any issue. The appellant/defendant was allowed by the plaintiff Sh. Mahngu Ram to stay in the suit property as the appellant/defendant was a nephew of his brother-in-law Sh. Ram Sewak. Appellant/defendant asked for some space to live and therefore he was allowed to live in the suit property by the plaintiff Sh. Mahngu Ram. However, over a period of time the appellant/defendant started insulting and harassing the plaintiff Sh. Mahngu Ram and therefore he had to leave the suit property and reside elsewhere. Sh. Mahngu Ram was threatened by the appellant/defendant to get him killed and for this reason also Sh. Mahngu Ram shifted from the suit property. In the suit plaint Sh. Mahngu Ram also pleaded that the appellant/defendant had forged his Will and which therefore should not be taken as giving any benefit to the appellant/defendant. In the plaint the plaintiff Sh. Mahngu Ram also mentioned that the appellant/defendant had filed another suit for injunction against the plaintiff Sh. Mahngu Ram and which civil suit was pending. In the subject suit plaint the plaintiff Sh. Mahngu Ram also stated that he had already executed the Will cancelling his earlier Wills.
3. Appellant/defendant did not dispute that the suit property was owned by the plaintiff Sh. Mahngu Ram and that he came in the suit property as a licencee of the plaintiff Sh. Mahngu Ram, however, the appellant/defendant claimed that he had spent a sum of Rs. 3 lacs in making construction on the property and therefore he had become the owner thereof. In the written statement, the appellant/defendant did not deny that he had filed a different suit for injunction against the plaintiff Sh. Mahngu Ram. The suit was, accordingly, prayed for being dismissed by the appellant/defendant.
4. As already noted above that Sh. Mahngu Ram had expired during the pendency of the suit and therefore the present respondent No. 1 was substituted as plaintiff in place of Sh. Mahngu Ram in terms of the registered Will dated 7.3.2011 of Sh. Mahngu Ram. At this stage itself it is also required to be noted that if the original plaintiff Sh. Mahngu Ram had been alive then the suit would have been decreed forthwith inasmuch as there was no dispute that plaintiff Sh. Mahngu Ram was the owner of the suit property. The only defence of the appellant/defendant of being entitled to stay in the suit property on account of making construction was not proved by the appellant/defendant in the trial court by leadin........