The High Court clarified the necessity for fresh determination of market rates for occupation charges, emphasizing the lack of co-ownership by the respondent and the error in previous appellate findings.

JUDGMENT

Amit Bansal, J. (Oral)--The present petition under Article 227 of the Constitution of India impugns the order dated 18th March, 2017 passed by the court of Additional District Judge (Shahdara), Karkardooma in MCA 44/2016, whereby the appeal filed on behalf of the respondent/defendant, challenging the order dated 30th January, 2016 passed by the Trial Court, has been allowed.

2. It is deemed appropriate to detail the facts preceding the filing of the/present petition. It is not disputed that the late mother of the petitioner/plaintiff was absolute owner of the freehold built up residential property bearing Plot No. 342, Gagan Vihar, Delhi-110051 measuring 130.35 square yards. In 2007, the mother of the petitioner/plaintiff sold the roof rights of the first floor of the property in question and the right to construct the second and third floor above the first floor of the aforesaid property, to the respondent/defendant. Thereafter, the respondent/defendant and his wife came to reside at the first floor of the suit property. Subsequently, the petitioner/plaintiff filed a suit for possession, damages/mesne profits, recovery of rent and perpetual injunction against the respondent/defendant in respect of the first floor of the suit property.

3. The Trial Court, while allowing the application filed on behalf of the petitioner/plaintiff under Order XXXIX Rule 10 read with Order XV-A of the Code of Civil Procedure, 1908 (CPC), observed/held that (i) in terms of the registered sale deed, the respondent/defendant only had roof rights of the first floor of the property in question and the right to construct the second and third floor above the first floor of the aforesaid property; (ii) no document has been produced by the respondent/defendant to support his status as co-owner of the suit property i.e., the first floor; (iii) therefore, the respondent/defendant cannot be said to be owner of the said property; (iv) the respondent/defendant had also not denied that he is not the owner of the first floor of the property; (v) once the defendant is not the owner of the first floor he cannot be permitted to enjoy the same without paying occupation charges; and, (vi) the respondent/defendant was directed to deposit Rs.15,000/- with the court as occupation charges from 18th October, 2012.

4. Against the order dated 30th January, 2015, the respondent/defendant filed an appeal which was allowed in terms of the order impugned in the present petition, wherein the Appellate Court has observed/held that (i) the respondent/defendant is occupying the first floor of the property in the capacity of a co-owner; (ii) the petitioner/plaintiff has not disclosed who had let out the suit property to the respondent/defendant on 18th June, 2007; (iii) the petitioner/plaintiff became the owner of the property only after the expiry of his mother on 5th October, 2012; (iv) it has not been disclosed by the petitioner/plaintiff as to whom the defendant/respondent was paying the rent; and, (v) the issue whether the property was let out to the respondent at a monthly rent of Rs.15,000/- or whether the mother of the petitioner allowed the defendant to occupy the suit property without any charge is a matter of trial.

5. In view of the above, the appeal filed by the respondent was allowed and the order passed by the Trial Court was set aside.

6. Counsel for the petitioner has submitted that the impugned order passed by the Appellate Court is patently erroneous. The finding by the Appellate Court, that the respondent is in occupat