RFA No.606/2001 Page 1 of 3 * 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 2 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 3 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