Kanhaiya Lal & Ors v. Muli Devi (Deceased) Thr Her Lrs & Ors

RAJIV SAHAI ENDLAW, J.

OCTOBER 15, 2018 "pp/gsr".. (Corrected and released on 21st November, 2018)

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 15th October, 2018 + RSA 165/2016, CM No.22887/2016 (for stay), CM No.43712/2016 (u/O XLI R-27 CPC) & CM No.31144/2017 (u/S 151 CPC). KANHAIYA LAL & ORS ..... Appellants Through: Mr. Om Prakash, Adv. versus MULI DEVI (DECEASED) THR HER LRS & ORS ..... Respondents Through: Mr. Sharvan Dev, Adv. for R-4. Mr. Parvinder Chauhan, Adv. for DUSIB with Mr. R.C. Meena, Dy. Director (JJR), DUSIB. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. This Second Appeal under Section 100 of the Code of Civil Procedure, 1908 (CPC) impugns the judgment and decree [dated 14th March, 2016 in RCA No.73/2015 (Unique Case ID No.02401C0480052015) of the Additional District Judge-II (Central)] of dismissal of First Appeal under Section 96 of the CPC preferred by the appellants against the judgment and decree [dated 29th July, 2015 in CS No.475/14 (Unique ID No.02401C0154042003) of the Court of Civil Judge-05 (Central)] of dismissal of suit filed by the appellants/plaintiffs for declaration, mandatory and permanent injunction. 2. This appeal came up first before this Court on 3rd June, 2016, when the Trial Court records were ordered to be requisitioned. On the next date of hearing i.e. 19th August, 2016, the counsel for the appellants / plaintiffs sought time to file an application under Order XLI Rule 27 of the CPC and the proceedings were adjourned to 24th November, 2016. On 24th November, 2016, notice of the appeal as well as the application under Order XLI Rule 27 of the CPC was ordered to be issued. The appellants/plaintiffs filed IA No.31144/2016 for directions and vide subsequent order dated 8th January, 2018 the counsel for Delhi Urban Shelter Improvement Board (DUSIB), though not a party to this appeal, was directed to produce some records. 3. The counsel for DUSIB states that the records are not available and have not been received from Delhi Development Authority (DDA). 4. The counsel for the respondents/defendants states that this Second Appeal is pending for the last nearly two years, without any substantial question of law having been framed or without any satisfaction having been recorded in any of the orders, of the appeal entailing any substantial question of law. 5. The counsel for the appellants/plaintiffs has been heard and the Trial Court records requisitioned, perused. 6. The appellants/plaintiffs instituted the suit, from which this appeal arises, pleading (i) that the five appellants/plaintiffs are sons of one Parma and co-owners of property No.B-18, Aruna Nagar, Majnu Ka Tilla, Delhi – 110 054; (ii) that the appellants/plaintiffs became owners of the property on demise on 19th March, 1989 of their father Parma, and on demise on 21st September, 1997, of their mother Shanti Devi; (iii) that the respondents/defendants are the wife and children of Ram Sahay, brother of the said Parma and are in occupation of portions of the said property as licensees; (iv) that the respondents/defendants had also raised constructions adjacent to the property; (v) that Parma, predecessor of the appellants/plaintiffs, had constructed a jhuggi at Maurice Nagar, Delhi, prior to 1958 and was residing there along with his family members; (vi) that the said jhuggi along with adjoining jhuggis were demolished by Municipal Corporation of Delhi (MCD) and alternate accommodation at the said Plot No.B-18, Aruna Nagar, Majnu Ka Tilla, Delhi allotted in lieu thereof; (vii) Shri Parma, predecessor of the appellants/plaintiffs, raised construction on the said plot and allowed his brother Ram Sahay and his family members i.e. the respondents/defendants to also reside along with him in the property so constructed; (viii) that it was Parma, predecessor of the appellants/plaintiffs alone who had been paying licence fee with respect to the said property; and, (ix) however, after the demise of Parma, predecessor of appellants/plaintiffs, predecessor of the respondents/defendants paid the licence fee for one mo