* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA 62/2007
Date of Decision: May 10, 2010
KULBHUSHAN RATHORE & ORS. ..... Appellant
Through: Mr. R. K. Sharma, Adv. with
Appellant in person.
versus
RAMESHWAR PRASAD ..... Respondent
Through: Respondent in person.
%
CORAM:
HON'BLE MS. JUSTICE ARUNA SURESH
(1) Whether reporters of local paper may be
allowed to see the judgment?
(2) To be referred to the reporter or not? Yes
(3) Whether the judgment should be reported
in the Digest ? Yes
JUDGMENT
ARUNA SURESH, J. (Oral) RSA 62/2007 and CM APPL. 3019/2007, 15630/2009 9 (u/s. 148 CPC)
1. Respondent filed a suit for permanent injunction, possession and recovery of Rs.1,78,000/- against the appellants in respect of Second floor in property No.7/841-A, Govindpuri, Kalkaji, New Delhi, being legal representatives of Shri R.P.S. Rathore. This excluded electricity and water charges. Tenancy of R.P.S. Rathore was duly terminated vide notice dated 31.03.1997. He died on 17.04.1997 and at the time of his death, he was under arrears of rent amounting to RSA 62/2007 Page 1 of 4 Rs.1,40,000/- for the period from 1.12.2994 to 17.4.1997. Only defence appellants took was that one Smt. Kamlesh was the landlady to whom they had handed over the keys as well as physical possession of the suit premises.
2. The Trial Court decreed the suit of the Respondent vide judgment and decree dated 6.11.2004. Appeal filed by the appellants met the same fate as the Appellate Court while agreeing with the findings of the Trial Court, dismissed the appeal vide impugned order dated 26.04.2006.
3. Respondent received vacant possession of the suit premises in execution proceedings on 1.04.2005. Therefore, the decree for possession stood satisfied. The only dispute left for consideration is the quantum of mesne profits/rent and other charges decreed against the appellants.
4. Mr. R.K. Sharma, counsel for the appellants has submitted that Respondent had no right, title or interest in the suit premises and they were tenant under Smt. Kamlesh Rani, to whom they have handed over physical possession of the suit premises. RSA 62/2007 Page 2 of 4
5. This argument is belied because the vacant possession of the suit premises was taken by the Respondent in execution proceedings through process of law.
6. Admittedly, appellants could not prove any document on record to show that the suit property was sold to Smt. Kamlesh Rani. The property was allegedly mortgaged without any registered Mortgage Deed. The possession of the suit premises was never handed over to the mortgagee by the mortgagor.
7. Findings of the courts below are findings on facts based on oral as well as documentary evidence produced on record by respective parties. It is pertinent to mention here that Smt. Kamlesh Rani, to whom the appellants alleged to have handed over the vacant possession of the suit premises, in her cross-examination had admitted that Respondent was the owner of the suit premises.
8. Under the facts and circumstances of this case, there is no substantial question of law which needs formulation. The Court has awarded rent as per the Agreement and damages after holding an inquiry under Order 20 Rule 12 CPC. Hence, appeal is hereby dismissed being without any merit.
RSA 62/2007 Page 3 of 4
9. During the course of arguments, Respondent had agreed that in case appellants paid a sum of Rs.4,05,000/- being rent/damages, he would not execute his decree for Rs.9,73,580/- as awarded to him. However, appellants showed his inability to pay the said amount. He had deposited a sum of Rs.2, 00,000/- in the form of FDR vide order of this Court dated 31.08.2009.
10. The said amount of Rs.2,00,000/- deposited in the form of FDR with the Registrar alongwith interest is ordered to be released in favour of the Respondent within three weeks.
11. In case, the appellants pay another sum of Rs.2,50,000/- to the Respondent within two months from today, the decree shall stand fully satisfied. In case, they fail to pay the said amount, Respondent is at liberty to execute the decree for the entire balance amount.
(ARUNA SURESH) JUDGE MAY 10, 2010 vk RSA 62/2007 Page 4 of 4