Rajinder Sachar, J.
(1) This is a second appeal by the defendant against the judgment and decree by the courts below by which the suit of the plaintiff for possession has been decreed and decree for Rs. l,260.00 being amount for 3 years prior to the suit at the rate of Rs. 35 per month has also been passed in favor.
(2) The property in dispute is plot No. 7, Block No. 3 Original Road, Paharganj, New Delhi. There is no dispute-about 2/3rd portion of the area which is admittedly said to be belonging to the plaintiff. The dispute is limited to l/3rd portion of the said plot. In 1940, one Chandu purchased leasehold rights of the plot in dispute, from Delhi Improvement Trust. Chandu leased it out it one Sohan Lal. In 1947, Chandu filed a suit against Sohan Lal and obtained an expart decree for possession. When he, however, sought to execute the decree, Shiv Lal, the father of appellants I and 3 and husband of appellant no. 2 resisted the execution, on the ground that he was in possession in his own right. Chandu moved an application under Order 21 rule 97 of the Code of Civil Procedure but the same was dismissed on 18th January, 1954. His suit filed against the respondent under Order 21 Rule 103 Civil Procedure Code was also dismissed on 30th August, 1954, Chandu also failed in appeal before the lower appellate court. The second appeal was filed in this Court which was later on not pursued and was dismissed on 30th March, 1959.
(3) Shiv Lal died on 16th May, 1961. On 12th June, 1962, this suit was filed for possession in which it was pleaded that Sohan Lal after the decree for ejectment against him inducted Shiv Lal, the father of the defendants and efforts to take possession under Order 21 Rules 97 and 10
1. Whether the plaintiff has become owner of the property in suit 2. Whether the suit is within time 7 3. Whether the defendant No. 1 has acquired title to the property in suit by adverse possession for over 12 years 4. Whether the plaintiff is entitled to any sum on account of damages for use and occupation of the property in dispute? If so, at what rate, for what period and amount? 5. - Whether the plaintiff is estopped from bringing the present suit 6. Relief.
(4) The trial court-by its judgment on 31st July, 1969, held that Shiv Lal, the predecessor-in-interest of the defendants came into possession of the land in dispute on 21st June, 19 50 and that the suit filed by the plaintiff on 12th June, 1962 was, thereforee, filed within time. As the only plea of the defendant to resist the suit was on the ground of title by prescription, a decree for possession was passed in plaintiff's favor as well as mesne profits for Rs. l,260.00 being the amount for 3 years prior to the suit at the rate of Rs. 35 p. m. were also awarded to him. The defendants went up in appeal and the same was also dismissed by the District Judge, by his judgment of 21st of December, 1971. The defendants have now come up to this Court in second appeal.
(5) Mr. Bhatia, the learned counsel for the appellant addressed the arguments mainly on issues Nos. 2 and 3. Indeed, they are the real issues. The fate of the suit really depends on the time when the defendant's father, Shiv Lal went into possession of the land in dispute. If Shiv Lal went into possession of the land some time in 1948, apparently, the suit filed in 1962 would .be be- yondaperionofl2 years and issue no. 2 would have to be decided aginst the plaintiff. But if, as the courts below have found that the defendant went into possession of the land in dispute only on 21st June, 1950, the suit would have been filed well within time and the suit decreed as has been done by the courts below. No doubt, oral evidence was led with regard to the respective pleas taken by the parties but decision really has been given with reference to the documents which have been placed on the record. The plea put-forth by the plaintiff is that Sohan Lal had let out this plot to one Shri Bishan Chand. Gupta who was a partner in the firm, Moti Ram Ram Nivas. On the dissolution of the said firm, the plot remained with the other members of the firm of M/s Moti Ram Ram Nivas, Bishan Gupta having retired Hardit Singh, plaintiff took onrent2/3ofthis plot on 2nd September, 1958. In support of that Ext. Public Witness Pw 14/A was proved by Inderjit Singh, Public Witness PW.14,son of deed writer Ram Lal who is now dead. He has produced the original register maintained by the father and proved the entry at Seriall No. 1468 on 3.9.1948. The said entry also shows that the super structure was purchased by Hardit Singh forRs.850.00 and rental of Rs. 84/. per month was agreed to. Similaily, l/3rd of the portion was taken on rent by Shri Ajit Singh Sethi. Public Witness . 10 proved entry in original register of his father Ext. 10/1 showing that Ajit Sethi took on rentl/3rd portion with effect from 1.9.1948 at Rs. 17/8.00 P.W. Ii the son of Ajit Singh deposed that l/3rd portion was let out later on to the defendants. Ext. P2 dated .6.12.1950 is House-tax receipt in .the name of Bishan Chand Gupta. From this evidence it is apparent that in 1948 the plot was being held by firm Moti Ram Ram Nivas and had been let out further to Hardit Singh and had been let out further to Hardit Singh and Ajit Singh in 1948. The suggestion obviously being that the defendant is ruled out as having occupied the plot in 1947 as was his case. The plaintiff's case being that the plot in dispute is said to have been occupied by the defendant sometime in 1950. In support of that reliance was placed by the plaintiff on letters Exhibits P4and P5 Ext. P4 dated 6.12.1950 is addressed to the Secretary, Municipal Committee informing him that 2/3rd portion of the plot was with Guru Nanak Timber Syndicate and 1/3rd was with Gurditta Mal, Shiv Lal and also intimating that Guru Nanak Syndicate was in possession sirice 1948 and Gurditta Mal and Shiv Lal since 21st June, 1950, and asking the house-tax to be apportioned accordingly. Ext. P5/1 is also a letter addressed to Municipal Committee by Guru Nanak Timber Syndicate and Gurditta Mal and Shiv Lal was respectively Rs.34.00 and Rs.l7.00 as rent. Both the letters are signed by Waryam Singh on behalf of Gurunanak Timber Syndicate and Shiv Lal on behalf of Gurditta Mal Shiv Lal. That the letters were signed by Shiv Lal was admitted by Tilak Raj, D.W.I. Defendants had also produced Ext. D-1 dated 11.9.1948 which refers to a settlement between Waryam Singh and Shiv Lal by which they agreed to avoid any dispute or friction on account of occupation of 2/3rd and l/3rd portion of the disputed property. Mr. Bhatia contended that in view of the documents Ext. D-1 dated 11th December, 1948, it was conclusively shown that the possession of the plot in dispute was with Shiv Lal since 1948. Both the courts blow have however preferred to accept Ext. P4 and Ext. P5 as against to Ext. D-1 and that the possession of the defendants cannot be said to be prior to 21st June 1950. This is a finding of fact and not challengeable in the second appeal. The learned counsel for the appellant however urged that this finding is contrary and is based on reference to evidence which is against the pleading of the plaintiff, He seeks to urgs that Ext. P4/1 and Ext. P5/1 should not have been taken into consideration as this evidence was beyond the pleadings. This argument is by reference to amendment in the plaint that Sohan Lal had respected Shiv Lal after the decree for ejectment against him. Mr. Bhatia would have it that because it was so stated in the plaint once the plaintiffs are not able to show evidence all other evidence must be ruled out. I am afraid, this is taking too restricted a view of the pleas, Para 4 of the plaint clearly states that the defendant's father came into possession of the portion of the plot after the decree against Sohan Lal and he was in possession as a tresspasser. The presens suit thus obviously is on the allegation that the defendants are trespassers. The fact that a mention was made that they came into passession after the passing of decree against Sohan Lal did not mean that the plea of defendants being trespassers were not taken. In fact, it was clearly spelt out in para 4 of the plaint. It was also urged that no reliance be placed on Ext. P-4/1 and Ext. P-5/1 because they were written by plaintiff who had nothing to do with the firm Gurunanak Syndicate in 1950 because he became a partner in 1953. The Plaintiff was examined and he did admit that the portion in the letter written in Urdu was in his hand. Now, no question was asked of the plaintiff to as to how he cams to write the documents on the ground that he did not have anything to do with the firm. It may be mentioned here that sister of Waryam who was a partner in Gurunanak Timber Syndicate in 1950, is married to the plaintiff. No Explanationn as to why Shiv Lal would sign Ext. P.4/1, further shows that their genuineness could not be ruled out. Objection was no doubt that the originals were not produced from the Municipal Committee, but for that, we have the evidence of Public Witness PW8 who deposed that the relevant property file was not traceable and had also produced the letter Ext. Public Witness PW8/1 in his behalf. There is, however, good supporting evidence which shows the receipt of these Exhibits Public Witness PW4/1 and Public Witness PW5/1 by the Municipal Committee. Thus, Ext. P8 dated 8th December, 1950 is a letter from the Municipal Committee, Delhi addressed to M/s Gurunanak Timber Syndicate making a reference to a letter 6th December, 1950 with, reference to the house-tax and asking them to appear on 11th December, 1950. Ext. P 7 is another letter from the Municipal Committee dated 23rd December, 1950 addressed to both Gurunanak Syndicate and M/s Gurditta Mal Shiv Lal asking for proof with regard to their 2/3rd and 1/3rd portions of the property in dispute. Similarly, Ext. P 6 dated 30 January, 1951 from the Municipal Committee again is on this matter and makes a pointed reference again to the letter of 6th December, 1950 written by the parties i.e. Gurunanak Syndicate and Gurditta Mal Shiv Lal. These letters from the Municipal Committee making a reference to letters of 6th December, 1950 clearly must and can have reference to Ext.P4/landExt.P5/l. No doubt, Mr. Bhatia did urge that there could be some other letters of 6th December, 1950 with reference to which Ext. P6, P7 and Pk could have been written. But this argument is a mere surmise and conjecture. A reference to Ext. P6, P7 and P8 clearly show that they are making a reference to house-tax and with regard to 2/3rd and l/3rd share of the respective parties and clearly relate to the contents of Exts. P4/1 and P5/1. There is nothing on the record to show that any other letters had been written jointly by Gurunanak Timber Syndicate and Gurditta Mal Shiv Lal to the Municipal Committee with reference to their house-tax problems. Evidently thereforee, Exts. P6, P7 and P8 could only relate to letters Exts. P4/1 and P5/1. It is true that Ext. Dl does raise the point of query as was urged by Mr. Bhatia as to why the letter was written in 1948 to keep peace with reference to l/3rd portion of the property in dispute, if as is now alleged by the plaintiff, the defendants were not in occupation on that date, The difficulty in the way of Mr. Bhatia is that I am sitting in second appeal and I cannot reassess evidence myself. It is well settled that even if there was an erroneous finding of fact this Court could not interfere with it in second appeal. But in the present case, the question that ultimately boiled out before the courts below was of drawing an inference from Exts. Dl or P5 to P8, found as fact in favor of the plaintiff. There was also the evidence of Ext. P9 dated 3.5.1949 showing the license by Municipal Committee in favor of Gurunanak Timber Syndicate, while there is no license taken by the defendant. All this evidence was from which courts below had to draw inference of fact. I cannot say that their reliance on all this evidence suffers from any such legal infirmity as to call for interference in second appeal. The question was of assessing glievance and inference of facts, namely that the possession of the defendants on the property was from 21st June, 1950.
(6) Mr. Bhatia also urged that the structure had been made on the land and the plaintiff should have been at least compelled to make payment for the structure. But there is nothing to show that the plaintiff had in any way permitted the construction knowing that the same was being done. There was litigation going on right from the beginning up to 1957-58 and any construction made by the defendants should not have been said to havh been acquiesced to by the plaintiff or his predecessor. The defendant, of course, may remove the super-structure and is given one month to vacate the promises. As a result I find no merit in the appeal and would dismiss the appeal but with no order as to costs.
(7) One Mr. Gian Chand who claims to have filed the special power of attorney in the lower appellate court on behalf of the respondent plaintiff wanted to urge a point that dismissal of civil writ No. 417 of 1972 amounted to resjudicate and had made the present appellant who had been proceeded under the public premises (Eviction of Unauthorised Occupants) Act had challenged the name in this Court. The said writ petition was, however, dismissed in liming. The dismissal of that writ petition obviously has relevancy to the decision of the appeal. The points there were not and could not be the subject matter of appeal. I, thereforee, considered it unnecessary to pursue this line of argument, as it was irrelevant,