Prathiba M. Singh, J.

1. The present appeal arises out of the Trial Court’s judgment dated 11th February, 2013 by which the suit of the Respondent/Plaintiff (hereinafter, “Plaintiff”) was decreed in the following terms:

“Keeping in view the decision on the various issues, the suit of the plaintiff is decreed for the possession of portion shown in red in Ex.PW1/2 i.e. first floor. Plaintiff is also directed to take the charges @ Rs.3000/- per month with respect to the portion shown red on the site plan Ex. PW1/2 on the first floor with 8% interest from the date of 30.09.2004 till delivery of possession with 10% increase per annum until compoundable.”

2. The Plaintiff – Sh. Gulshan Arora is the exclusive absolute owner of an industrial plot no.A-79, G.T. Karnal Road Industrial Area, Delhi-110033 admeasuring 453.33 sq. yds,. allotted by the DDA. The manner in which the Plaintiff acquired ownership is set out in paras 1 to 3 of the plaint. No dispute as to the title of the Plaintiff in the suit property, has been raised in the present appeal.

3. According to the plaint, the Appellant/Defendant - M/s Pomey Plastic Works (hereinafter, “Defendant”) took on rent a hall and one Miani on the Ground Floor in the suit property vide written agreement dated 1st December, 1979 from the previous owner M/s Suraj Auto Industries. According to the Plaintiff, the Defendant has no right in respect of any other portion of the property except the yellow portion as per the site plan attached with the plaint. The Plaintiff claimed that the Defendants started making additional alterations in the property and built two stores in the empty area appurtenant to hall which was rented to him. The Plaintiff then complained to the Municipal Authorities and they were demolished. It is further claimed that the Defendant again illegally constructed the said demolished stores and the Plaintiff has filed a separate eviction petition in respected of the tenanted property.

4. The Plaintiff’s father passed away on 21st November, 1993 and in 1998, the Defendant filed a suit for permanent injunction wherein a prayer was sought that he should not be dispossessed from the rental premises. The Plaintiff herein claims that in the said suit no.308/1998, the Defendant wrongly included an additional portion of the First Floor as part of the tenancy. That suit came to be decreed as ex-parte on 5th December, 1998. The knowledge of the said decree was acquired by the Plaintiff only on 27th September, 2004, and it was only then that the Plaintiff realized that the Defendant had unlawfully trespassed into the property of the First Floor comprising of one hall measuring 370 sq. ft., one room measuring 150 sq. ft. and a toilet measuring 30 sq. ft. The Plaintiff averred that he protested against such trespass and called upon the Defendant to handover the vacant and peaceful possession of the property. However, the Defendant did not accede. Thus, the Plaintiff filed subject suit in respect of the First Floor of the property as shown in red in the site plan. The prayer sought is as under:

“(a) That a Decree for Possession be kindly passed in favour of the Plaintiff and against Defendant in respect of portion of the property No.A-79, G.T. Karnal Road, Delhi, comprising of one Hall, one room and a Toilet on the First Floor of the above property as shown Red in the Site Plan attached.

(b) That further a Decree for Recovery of Damages be also passed in favour of the Plaintiff and against the Defendant for illegal use and occupation of the above suit property of the Plaintiff without any authority which total damages/mesne profits comes to Rs.3,60,000/-.

(c) That the cost of the suit be also awarded.

(d) Any other relief deemed fit and proper be kindly granted to the Plaintiff.”

5. In the written statement, the Defendant prayed that as per the agreement, he took on rent the office on the First Floor along with the toilet facility and the same was taken in the name of his sister concern M/s C