Sheikh Aftab Ahmed Jamlana & Ors v. Akhtari Begum & Anr

RAJIV SAHAI ENDLAW, J. AUGUST 03, 2018 'gsr'.

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Date of decision: 3rd August, 2018. + SHEIKH AFTAB AHMED JAMLANA & ORS ..... Appellants Through: Mr. Himal Akhatar & Mr. Imran Kamal, Advs. Versus AKHTARI BEGUM & ANR ..... Respondents Through: None. CORAM: HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW CM No.18747/2018 (for exemption) 1. Allowed, subject to just exceptions. 2. The application is disposed of. RSA 75/2018, CM No.18746/2018 (for stay), CM No.18748/2018 (for condonation of delay in re-filing the appeal) & CM No.18749/2018 (u/S 151 CPC) 3. This Second Appeal under Section 100 of the Code of Civil Procedure Code, 1908 (CPC) impugns the judgment and decree [dated 29th November, 2017 in RCA No.1211/16/12 of the Court of Senior Civil Judge, Central District] of dismissal of the First Appeal under Section 96 of the CPC preferred by the appellants / plaintiffs against the judgment and decree [dated 18th February, 2012 in Suit No.145/10/85 (Unique Case ID No.02401C0005401998) of the Court of Civil Judge-6, Central District] of dismissal of the suit filed by the appellants / plaintiffs. 4. The counsel for the appellants / plaintiffs has been heard. 5. The appellants / plaintiffs instituted the suit, from which this Second Appeal arises, pleading (i) that their predecessor was a tenant of Shop No.804, Bartan Market, Sadar Bazar, Delhi along with common passage abutting the said shop and the roof over the said shop including roof over the common passage; (ii) that the respondents / defendants had encroached upon the roof over the common passage and which roof was in the tenancy of the appellants / plaintiffs; and, (iii) and the respondents / defendants had constructed a room over the roof of the common passage. Hence, the suit for possession of the roof above the common passage and of permanent injunction restraining the respondents / defendants from interfering with the possession of the appellants / plaintiffs of the said roof over the shop and the common passage. 6. The respondents / defendants contested the suit by filing a written statement inter alia pleading, (i) that the property, in shops wherein the appellants / plaintiffs and the respondents / defendants were tenants, was an evacuee property and which then vested in the Delhi Development Authority (DDA); (ii) denying that the predecessor of the appellants / plaintiffs was a tenant in Shop No.804 or a tenant of the roof above the shop and the common passage; (iii) denying that the respondents / defendants had encroached on the roof over the common passage; (iv) that the roof above the common passage as well as the roof over the shop had always been in possession of the respondents / defendants and the appellants / plaintiffs were never in possession of the roof above the shop or the common passage; (v) that the room on the roof above the common passage in possession of the respondents / defendants had also been in existence for long; (vi) denying that the room on the roof above the common passage had windows and doors which open towards the roof over the shop of the appellants / plaintiffs; and, (vii) denying that the respondents/defendants had no right to make construction over the roof above the shop in their possession. 7. On the pleadings of the parties, the following issues were framed in the suit on 22nd May, 1986: "1. Whether the suit has not been properly valued? OPD. 2. Whether the suit is bad for non joinder of necessary parties? OPD 3. Whether the Plaintiff is entitled to a decree of permanent injunction as prayed for? OPP. 4. Whether the Plaintiff is entitled to a decree of possession as prayed for? OPP 5. Relief." 8. During the pendency of the suit, there was an order directing both the parties to maintain status quo. The appellants / plaintiffs alleged violation of the said order by the respondents / defendants and on which application under Order XXXIX Rule 2A of the CPC, the following issues were framed on 23rd July, 1987: "1. Whether the Respondent has committed