FAO 124/2021 1

$~41

*IN THE HIGH COURT OF DELHI AT NEW DELHI

%

Judgment delivered on: 26.03.2021

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FAO 124/2021 & CM APPL.12523-24/2021

SYED AIJAZ HUSSAIN

..... Appellant

versus

ISLAHUDDIN KHAN & ORS.

..... Respondents

Advocates who appeared in this case:

For the Petitioner:

Mr.Javed Ahmad, Advocate, Advocate.

For the Respondent:

Mr. Thakur Sumit, Mr. Zaki Kazmi and Mr. Amit

Dogra, Advocates for R-1 & 2.

CORAM:-

HON’BLE MR. JUSTICE SANJEEV SACHDEVA

JUDGMENT

SANJEEV SACHDEVA, J. (ORAL)

1.

Appellant impugns order dated 17.03.2021 whereby the

application under Order 39 Rule 1 & 2 CPC filed by the appellant

seeking a restraint on respondents from carrying out any construction

activity or changing the structure of the suit premises i.e. property

No.38 admeasuring 84 sq.yards L Type situated at Noor Nagar, Jamia

Nagar, Okhla, New Delhi and further from transferring, alienating or

parting with possession or creating third party interest in the said

property during the pendency of the suit has been dismissed.

2.

The appellant/plaintiff had filed the subject suit for declaration,

recovery of possession and mandatory injunction on 24.02.2021

seeking a declaration, declaring the General Power of Attorney,

Digital Signed By:KUNAL

MAGGU

Signing Date:07.04.2021 11:41:06

This file is digitally signed by PS

to HMJ Sanjeev Sachdeva.

Signature Not Verified

FAO 124/2021 2

Agreement Affidavit all dated 17.05.1967 to be null and void having

no relationship with the suit property No.38, Khasra No.176

admeasuring 84 sq.yards L Type, Noor Nagar, Jamia Nagar, Okhla,

New Delhi and further seeking a decree of possession in favour of the

appellant and a mandatory injunction to remove the illegal and

unauthorised construction raised over the subject property.

3.

The case set up by the appellant is that one Najamuddin Khan

was the lawful and exclusive owner of the built up property and had

purchased and occupied the same before 1970.

4.

It is contended in the plaint that Najamuddin Khan was a

Government employee in Uttar Pradesh and due to his transfer had to

stay in different parts of Uttar Pradesh along with his family members.

However, on holidays used to come to Delhi and stay in the suit

property.

5.

It is averred in the plaint that approximately 25-30 years back

said Najamuddin Khan shifted to Agra with his family and started

residing over there, however, he kept on visiting the property as and

when he availed suitable opportunities.

6.

It is alleged that for some time Qamaruddin (father of

respondent No.1) was staying as a licensee in the suit property with

his family members and subsequently shifted to Zakir Nagar, Okhla

along with his family.

7.

It is alleged that Qamaruddin, with the permission of

Digital Signed By:KUNAL

MAGGU

Signing Date:07.04.2021 11:41:06

This file is digitally signed by PS

to HMJ Sanjeev Sachdeva.

Signature Not Verified

FAO 124/2021 3

Najamuddin his elder brother, had let out the suit property and used to

pay rent the rent received to the erstwhile owner (Najamuddin). It is

alleged that after the demise of Qamaruddin his son i.e. respondent

No.1 started taking care of the suit property and used to collect rent

from the tenants and pay to Najamuddin.

8.

It is alleged in the plaint that for the last 3-4 years respondent

No.1 stopped paying the rent to Najamuddin though he was regularly

collecting it from the tenants.

9.

It is alleged that in March-April, 2020 due to Corona pandemic

the tenants vacated the property and appellant purchased the suit

property on 15.06.2020 by way of execution of General Power of

Attorney, Agreement to