RAJIV SAHAI ENDLAW, J.

1. This first appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) impugns the judgment and decree dated 19th July, 2006 of the Court of the Additional District Judge (ADJ) (Fast Track Court), Tis Hazari, Delhi of dismissal of Suit No.10/2006 (instituted on 7th September, 1992) filed by the appellant for recovery of possession of immovable property and damages for use and occupation.

2. Notice of the appeal was issued and Trial Court record requisitioned. The appeal, on 5th May, 2008 was admitted for hearing. Upon non appearance of either of the parties on 2nd December, 2009 and 3rd December, 2009, the appeal was dismissed in default but restored to its original position vide order dated 14th December, 2010 and again ordered to be listed for hearing in the category of ‘Regulars’ as per turn. The appellant applied for early hearing and the appeal listed for hearing on an actual date. However thereafter again there was a spate of adjournments. Finally on 8th October, 2015 though attempt to hear arguments in the appeal was made but neither the counsel for the appellant nor the counsel for the respondent were possessed of the suit file and were unable to answer the enquiries made. In the circumstances, judgment was reserved. No arguments in writing also have been filed by the counsels for the parties. Be that as it may, I proceed to decide the appeal after perusing the Trial Court record.

3. The appellant filed the suit from which this appeal arises pleading (i) that her husband Col. O.P. Kohli was the owner of property no.H-2/11, Krishna Nagar, New Delhi; (ii) that the appellant and her three daughters namely Ms. Bela Awasthi, Ms. Beena Chandiok and Ms. Jyotsna Bhatnagar being the legal heirs of Col. O.P. Kohli executed a Memorandum of Family Settlement dated 2nd May, 1992 confirming the oral settlement dated 27th January, 1992 that the suit property will be owned and held exclusively by the appellant and that her daughters will have no concern with the said property; (iii) the husband of the appellant also left a Will bequeathing the said property in favour of the appellant; (iv) that the respondent/defendant is the brother of the husband of the appellant/plaintiff and has been occupying the said property along with his family members as a licensee; (v) that the appellant vide legal notice dated 1st April, 1992 terminated the licence of the respondent/defendant and called upon him to vacate the premises and had informed him that upon his failure to do so the appellant would claim Rs.5,000/- per month as damages; (vi) that the respondent/defendant is also liable to return the original title deed etc. of the property in question; and, (vii) that the respondent/defendant has no right to continue to occupy the property. Reliefs, of recovery of possession of property, recovery of Rs.90,000/- as arrears of licence fee with interest and of recovery of future mesne profits/damages for use and occupation were claimed in the suit.

4. The respondent/defendant contested the suit by filing a written statement pleading (i) that Col. O.P. Kohli (husband of the appellant/plaintiff) had voluntarily vide Will dated 29th July, 1985 willed the said two storeyed property and land underneath in favour of his father Shri B.R. Kohli and mother Smt. Sewa Devi; (ii) the family of Shri B.R. Kohli i.e. all the sons were jointly living in the said property and in joint possession thereof; (iii) in fact the property was acquired out of joint family savings, in the name of Col. O.P. Kohli, to avail cheap loan facility from the Government with which Col. O.P. Kohli was employed; (iv) else Shri B.R. Kohli being the Head of the family performed the role of Karta of the joint family; (v) the loan was also re-paid from the savings of the joint family; (vi) the property is in physical possession of family members left behind by Shri B.R. Kohli; Col. O.P. Kohli was frustrated and fed up with the attitude of his wife i.e. th