The suit for possession was maintainable without seeking a declaration of title as the plaintiff's title was not challenged, and the appellant's possessory claim was derived from a lease deed with a permissive user.

JUDGMENT

Neena Bansal Krishna, J.

CM. APPL.20677/2023 (Exemption)

1. Allowed, subject to just exceptions.

2. The application is disposed of.

CM. APPL.27301/2023 (Condonation of delay)

3. Vide the present application, the applicant/appellant seeks condonation of 23 days' delay in filing the present appeal.

4. For the reasons and ground stated in the present application, the application is allowed and the delay of 23 days in filing the present appeal is condoned.

5. Accordingly, the application is disposed of.

RFA (OS) 7/2023

6. The present Appeal has been preferred by the defendant No. 2/appellant against the Judgement and Decree dated 08.08.2022 vide which the suit of the plaintiff/respondent No. 1 for possession and for mandatory injunction has been decreed and the appellant was directed to hand over the possession, under Order XII Rule 6 Code of Civil Procedure, 1908 (hereinafter referred to as "CPC, 1908"). The appellant has also challenged the Order dated 03.02.2023 vide which the Review Petition against the judgement was dismissed.

7. The respondent No.1 (plaintiff in the original suit) herein had filed a suit for possession and mandatory injunction against the appellant, Hanny Kumar/defendant No. 2, Sh. Sardar Singh, defendant No. 3/respondent No. 3 and Sh. Vijay Gupta, defendant No. 1/respondent No.2 in regard to suit property bearing no WZ-36A/2, Krishna Park Extension, New Delhi-110018.

8. Admittedly, the suit property which comprised of ground, first and second floor, was owned by the husband of the plaintiff late Sh. Ashok Kumar, vide Sale Deed dated 18.01.1995. He expired on 27.02.2015 and the plaintiff along with her two children, Himanshu Gupta and Prachi Goel, became joint owners of the suit property. The children relinquished their respective share in the suit property vide Relinquishment Deed dated 25.05.2017 in favour of the plaintiff thereby, she became the sole and absolute owner of the suit property. It was got mutated in her favour by SDMC vide Mutation Letter dated 27.02.2020.

9. The respondent No.1/plaintiff had stated that in the year 2012, Sh. Vijay Gupta/defendant No.1 (respondent No.2 herein), who is the elder brother of her husband late Sh. Ashok Kumar, was permitted to use the first and second floor and one room on the ground floor of suit property for storing goods and he was liable to vacate as and when the permission was withdrawn by Late Sh. Ashok Kumar. However, defendant No. 1/respondent No. 2 carried out illegal construction and demolition and opened a Gymnasium in 2014-15. Sh. Ashok Kumar was averse to the opening of the same as it altered the usage of the suit property. Hence, he requested respondent No. 2 to cease operating the Gymnasium from the first floor; however, the appellant pleaded that he would incur losses if the Gymnasium is closed and sought permission to continue for some time. Since the wedding of son of Sh. Ashok Kumar was scheduled for 09.02.2015, he did not want any acrimony between the brothers and decided to sort out this issue subsequently. However, soon before the wedding of the son, he got hospitalized on 04.02.2015 and died intestate later on 27.02.2015.

10. The respondent No.1/plaintiff explained that the ground floor of the suit property except one room was vacated by M/s. Saraswati Accountants Software Pvt. Ltd., but Sh. Vijay Gupta started utilizing the entire area of ground floor for the purpose of storing of the goods without the permission of the plaintiff. The plaintiff requested him to cease utilization of the ground floor and vacate first and second floor of the suit property, but he narrated his financial woes and pleaded that he may be allowed a year or two to make alternative arrangements. The plaintiff, because of the sudden loss of her husband, acceded to the request on the condition that he would not cause any change in the suit property and would continue to maintain the existing manner of use of the suit property and shall not create any thi