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* IN THE HIGH COURT OF DELHI AT NEW DELHI % Reserved on: 3^rd November, 2023 Date of Decision: 12th December, 2023 + RSA 2/2023 & CM APPL. 381/2023(stay)

SH. PEHLAD RAI ..... Appellant Through: Mr. Om Prakash and Mr. Durgesh Gupta, Advocates.

versus SMT. TARA DEVI (NOW DECEASED) THROUGH HER LEGAL HEIRS & ORS. ..... Respondent Through: Mr. S.K. Bhalla, Advocate CORAM:

HON'BLE MS. JUSTICE MANMEET PRITAM SINGH ARORA

J U D G M E N T

MANMEET PRITAM SINGH ARORA, J:

1. This second appeal filed under Section 100 of the Code of Civil Procedure, 1908 (‘CPC’) impugns the judgment dated 17.10.2022 passed by ADJ-07, Central District, Tis Hazari Courts, Delhi (‘First Appellate Court’) in RCA No. 19/2020, titled as Sh. Pehlad Rai v. Smt. Tara Devi Thr. LRs & Anr.

1.1. The First Appellate Court vide the impugned judgment dismissed the appeal filed against the judgment and decree dated 02.05.2016 passed by Civil Judge-09, Central District, Tis Hazari Courts, Delhi (‘Trial Court’) in CS No. 570/2006, titiled as Smt. Tara Devi v. Sh. Prahlad Rai.

1.2. For the sake of convenience, the parties are being referred to as per their rank and status before the Trial Court. The Appellant herein is being Signature Not Verified Digitally Signed referred to as the defendant and the Respondent herein is being referred to as the counter-claimant.

1.3. The defendant initially filed a civil suit seeking permanent injunction restraining the counter-claimant from dispossessing the defendant forcibly and without due process of law from the six (6) wooden boxes i.e., three (3) wooden almirahs partitioned in two (2) boxes each (‘suit property’ or ‘said almirahs’) are located in Shop no. 5239, Ghash Mandi, Gali Petiwali, Gandhi Market, Sadar Bazar, Delhi. The plea set up by the defendant in this suit was that he is a tenant with respect to the said almirahs in suit property.

1.4. The counter-claimant herein filed her written statement in the suit and denied the contention of the defendant herein, stating that the permission to use the said almirahs was given to the defendant on leave and license basis. The counter-claimant sought a decree of mandatory injunction against the defendant for vacating the said almirahs and Thada located in Shop no. 5239, Ghash Mandi, Gali Petiwali, Gandhi Market, Sadar Bazar, Delhi.

1.5. The suit filed by the defendant was later dismissed as withdrawn at the request of the said defendant. The Trial Court vide judgment dated 02.05.2016 allowed the counter claim filed by the Respondent herein, and directed the defendant to leave the said almirahs and Thada located in Shop no. 5239, Ghash Mandi, Gali Petiwali, Gandhi Market, Sadar Bazar, Delhi, which has been upheld by the First Appellate Court vide the impugned judgment dated 17.10.2022.

Arguments of the Appellant i.e. defendant Signature Not Verified Digitally Signed

2. The learned counsel for the Appellant i.e., defendant states that the counter-claimant sought a mandatory injunction against the defendant which can only be granted against a party who is in lawful occupation.

2.1. He states that however, the First Appellate Court failed to appreciate that the counter-claimant alleged in the pleadings that the defendant is in illegal occupation of the suit property as ‘trespasser’. He states that this pleading of illegal occupation by the counter-claimant cannot justify the finding of ‘license’ returned by the First Appellate Court in favour of the counter-claimant.

2.2. He states that no reliance can be placed by the counter-claimant on the previous judgement dated 23.12.1999 passed by the civil court in a prior suit bearing no. 939/19923, awarding damages in favour of the counter-claimant, for the period from 01.07.1992 to 30.06.1993, as the said judgement does not deal with the issue of existence of ‘tenancy’ or ‘license’ between the parties.

2.3. He states that since in the counter-claim, it has been alleged that the defendant is a ‘trespasser’, the first substantial question of law arising for consid