JUDGMENT :

JYOTI SINGH, J.

C.M. APPL. 46860/2021 (delay of 47 days in filing)

1. Present application has been filed on behalf of the Appellant seeking condonation of delay of 47 days in filing the appeal.

2. Issue notice.

3. Ms. Gita Dhingra, learned counsel accepts notice on behalf of the Respondents.

4. For the reasons stated in the application, the same is allowed and disposed of.

RFA 436/2021 & C.M. APPL.46857/2021 (for stay)

5. By way of present appeal, Appellant raises a challenge to the judgment and decree dated 11.08.2021 passed by the Trial Court in Civil Suit no. 739/2016.

6. Appellant herein was Defendant No. 1 before the Trial Court and Respondent No. 1 herein was the Plaintiff and the parties are referred to by their nomenclature and litigating status before the Trial Court.

7. Plaintiff filed a suit seeking decree of possession, damages/mesne profits for illegal use, occupation and possession of property bearing No. RZ-B-1/137, out of Khasra No. 5/12, situated in the area of village Mirzapur Colony, known as Vijay Enclave, Ambedkar Gali, New Delhi (hereinafter referred to as the suit property) as well as for permanent injunction against the Defendants.

8. The case set up by the Plaintiff was that husband of the Plaintiff expired on 02.01.2012 leaving behind the Plaintiff, three sons and two daughters being Defendants No. 2 to 6 and since he died intestate, the suit property fell to the share of the Plaintiff and other legal heirs of the deceased to the extent of 1/6th undivided share, each. It is averred that the deceased had authorized his brother Shri Rakesh Gupta to look after the suit property and after the death of her husband, Plaintiff wanted to look after the suit property and upon visiting the premises was shocked to see that Defendant No. 1 had illegally and unauthorizedly occupied the same. Plaintiff received a notice dated 16.11.2015 issued by one Shri Sunil Kumar, Advocate on behalf of Defendant No. 1 claiming therein that the deceased had allegedly executed an Agreement to Sell on 11.08.2009, for which earnest money/bayana had been paid. On 04.12.2015, Plaintiff replied to the notice and disputed and denied the allegations made as well as the execution of the agreement.

9. It is the case of the Plaintiff that Defendant No. 1, after the death of Plaintiff’s husband, in collusion with Shri Rakesh Gupta, brother of the deceased, unauthorizedly occupied the suit property and even Shri Rakesh Gupta became hostile and un-cooperative towards the Plaintiff. Plaintiff sent a notice on 04.12.2015 terminating whatever rights Defendant No. 1 claimed in the suit property and upon failure of Defendant No. 1 to vacate the suit property, filed the suit, aforementioned. Plaintiff also claimed damages/mesne profits at the rate of Rs.10,000/- per month from the date of filing of the suit till delivery of possession to the Plaintiff.

10. Upon filing of the suit, summons were issued to the Defendants. Written statement was filed by Defendant No. 1 and Replication was filed by the Plaintiff. Trial Court framed the following issues:

“(1) Whether the suit of the plaintiff is not maintainable as claimed and defendant is in occupation of the suit property in his own rights as claimed?OPD-1

(2) Whether the plaintiff is entitled to the relief of possession as claimed with respect to property bearing no. RZ-B-1/137, out of Khasra No. 5/12, situated in the area of village Mirzapur Colony, known as Vijay Enclave, Ambedkar Gali, New Delhi-110045?OPD

(3) Whether the plaintiff is entitled to the relief of damages/mesne profits from defendant no. 1 to the extent of Rs.3,60,000/-, as claimed? OPP

(4) Whether the plaintiff is entitled to the claim of pendentelite and future damages/mesne profits @ Rs.10,000/- per month?OPP

(5) Whether the plaintiff is entitled to the relief of permanent injunction as claimed? (OPP, however, the onus has inadvertently not been mentioned in the order dated 17.04.2018, same stands corrected)

(6) Relief.”

11. In order to sub