Om Parkash v. Anamika

RAJIV SAHAI ENDLAW, J. AUGUST 01, 2018/pk/ak

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 1st August, 2018. + OM PARKASH ..... Appellant Through: Mr. K.N. Jha, Advocate Versus ANAMIKA ..... Respondent Through: Mr. Kapil Singhal, Advocate CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW 1. This Second Appeal under Section 100 of the CPC impugns the judgment and decree [dated 20th May, 2016 in RCA No.47/2017 (Unique ID No.02402C0019922017) of the Court of Additional District Judge-01, East] of dismissal of First Appeal under Section 96 of the CPC filed by the appellant against the judgment and decree [dated 16th February, 2017 in CS No.9240/2016 of the Court of Administrative Civil Judge, East] of dismissal of suit filed by the appellant / plaintiff against the respondent / defendant for recovery of possession of immovable property, recovery of licence fee, damages and for permanent injunction. 2. This appeal came up first before this Court on 4th August, 2017 when, without indicating the substantial question of law, notice thereof was ordered to be issued. 3. The counsel for the respondent appeared in response to the notice and mediation attempted failed. 4. The counsels have been heard. 5. The appellant / plaintiff instituted the suit, from which this appeal arises, pleading: (i) that he is the owner / occupier of jhuggi no.209, Old Seelampur, Delhi; (ii) that the appellant / plaintiff had constructed the said jhuggi with his own monies; (iii) that the respondent / defendant requested the appellant / plaintiff to allow her to reside on the first floor of the jhuggi for a short period and assured that she would pay a sum of Rs.4,000/- per month excluding electricity and water charges as licence fee; (iv) that the respondent / defendant was thereafter paying licence fee to the appellant / plaintiff in cash; (v) the respondent / defendant, however, in the month of November, 2015, stopped paying the licence fee and did not pay the same despite repeated requests; (vi) the licence of the respondent / defendant was terminated vide legal notice dated 5th January, 2016; 6. The respondent / defendant contested the suit by filing the written statement, inter alia pleading:- (a) that the respondent / defendant had given a sum of Rs.2,50,000/- as security to the appellant / plaintiff and in response to which, the appellant / plaintiff had allowed the respondent / defendant to stay in his house for a period of three years and it was also agreed that when the respondent / defendant leaves the house, the appellant / plaintiff shall pay the sum of Rs.2,50,000/- which the appellant / plaintiff had taken as security; (b) that the appellant / plaintiff had however turned dishonest and was not wanting to return the amount of Rs.2,50,000/- paid by respondent / defendant as security; (c) it was denied that the respondent / defendant had agreed to pay Rs.4,000/- per month or ever paid the said amount; 7. The Suit Court, on the date when the suit was listed for "first hearing", i.e. before framing the issues, dismissed the suit, reasoning that: (I) the property was a jhuggi and neither the appellant / plaintiff nor the respondent / defendant was the owner thereof; (II) both were squatters over government land. Since the appellant / plaintiff was also a trespasser / squatter, he had no possessory or proprietary rights and could not transfer the same; (III) if a squatter loses possession, he has no right to re-claim possession. 8. The First Appellate Court dismissed the appeal, merely agreeing with the reasoning given by the Civil Judge. 9. Though no substantial question of law has been framed in this Second Appeal till now, but I have enquired from the counsel for the respondent / defendant, that the respondent / defendant having admitted being put into possession of the property by the appellant / plaintiff and having not pleaded any title to the property or her right to continue in possession of the property, why should a decree for possession be not passed forthwith, allowing thi