JUDGMENT

Indermeet Kaur, J. (Oral)

1. This appeal has impugned and judgment dated 25.9.2006 which had endorsed the finding of the trial judge dated 01.12.1995 whereby the suit filed by the plaintiff Ramjsas Foundation seeking possession and recovery of damages qua the suit property i.e. Jhuggi No.F-35, Sari Rohilla, anand Parbat, New Delhi ( hereinafter referred to as 'the suit property') had been decreed in faovur of the plaintiff.

2. The case of the plaintiff as is evident from the plaint is that the plaintiff is the owner of the suit property. The defendant was a licencee therein. License deed dated 31.12.1979 (Ex.,PW-1/6) had been executed between the parties. Defendant is unauthorisedly occupying the suit property. In para 5 of the plaint, it has been specifically averred that the licence of the defendant was terminated on 07.3.1985 vide a written notice. In spite of the said termination the defendant had failed to vacate the suit property.

3. In the written statement, it was denied that the licence has been terminated in terms of the aforenoted notice. It was stated that up to date licence fee had been paid by the defendant; no cause of action has arisen in favour of the plaintiff.

4. On the pleadings of the parties seven issues were framed; they read as follows:

1. Whether plaintiff has any locus standi to file the present suit against the defendant? OPP

2. Whether the suit has been signed, verified and file on behalf of the plaintiff by a duly authorized and competent person? OPP

3. Whether defendant was licencee of the plaintiff society in respect of Jhuggi No.35, Sario Rohilla, Anand Parbat and his licence was terminated vide notice 7.3.85, if so, to what effect? OPP

4. Whether the defendant has encroached upon the land in front of the plaintiff's jhuggi without the consent of the pltff if so, to what effect? OPP

5. Whether plaintiff is entitled to claim, damages from the defendant for the illegal use and occupation of the encroached them as shown red in the site plan attached, if so, at what rate and for what period? OPP

6. Whether plaintiff is entitled to the relief of possession as claimed? OPP

7. Relief.

5. On the basis of oral and documentary evidence led by the parties, the suit of the plaintiff was decreed, which finding was affirmed by the first appeallate court.

6. This is a second appeal. It has been admitted and on 24.8.2009 the following substantial question of laws were framed:

1. Whether the licence of a licencee can be terminated without giving him a notice in terms contained in the licence deed? If so its effects?

2. Whether the licence of a licencee can be revoked on filing of a suit without terminating the licence by way of a written notice?

7. On behalf of the appellant, it has been submitted that Clause 5 of the licence deed Ex. PW-1/6 states that after the termination of the licence if the licencee fails to vacate the property, he will be charged damages at the rate mentioned therein. Attention has also been drawn to para 5 of the plaint where it has been averred that the licence of the defendant had been terminated vide written notice dated 7.3.1985. It is pointed out by learned counsel for appellant that both the two finding court have returned a positive finding against the plaintiff on this score. Both the courts have held that the notice dated 7.3.1985 was in fact never served upon the defendant. The licence deed (Ex.PW-1/6) clearly states that the licence will be terminated meaning thereby that it has to be by a written document as is also averred in para 5 of the plaint. This fact having been disbelieved by both the two courts below, it is clear that the licence has not been validly terminated; defendant cannot be evicted. Finding in the impugned judgment is a perversity; it calls for an interference.

8. Arguments have been refuted.

9. Record has been perused. The finding in the impugned judgment qua this controversy is interalia extracted as follows:

"It is fact that the