Meena Ghosh And Anr. vs Suman Pahwa And Ors.

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RSA No.169/2013

%                                                 20th March, 2014

MEENA GHOSH AND ANR.                                     ....Appellants
                 Through:                None.


                          VERSUS

SUMAN PAHWA AND ORS.               ...... Respondents
                  Through: None.
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA


To be referred to the Reporter or not?


VALMIKI J. MEHTA, J (ORAL)

1.           No one was present for the appellants on the first call. No one

is present for the appellants even on the second call. I have therefore gone

through the record and am proceeding to dispose of this Regular Second

Appeal against the concurrent judgments of the courts below; of the trial

court dated 21.7.2011 and the first appellate court dated 3.4.2013; by which

the suit of the appellants/plaintiffs for injunction was dismissed and the

counter claim of the respondents/defendants for possession and mesne

profits was decreed.


RSA No.169/2013                                               Page 1 of 5
 2.           The facts of the case as pleaded by the appellants/plaintiffs

were that plaintiffs were tenants of one Sh. Shiv Durga Prasad of the entire

ground floor and second floor of G-136, New Seelampur, Delhi at a monthly

rent of Rs.400/-. It was further pleaded that the husband of the plaintiff

no.1/appellant no.1, and who is the plaintiff no.2/appellant no.2, was

working as a driver with the defendant no.1/Sh. Ganesh Pahwa (since

deceased and now represented by respondent nos.1, 2 and 3). It was further

the case in the plaint that disputes arose between the parties because the title

deeds of a plot of land in the ownership and possession of plaintiff

no.2/appellant no.2 was kept in the possession of the defendant no.1 for safe

custody but the same was not returned and instead the appellants were asked

to vacate the portion in their occupation in the suit property No.G-136, New

Seelampur, Delhi. Hence the subject suit for permanent and mandatory

injunction was filed.

3.           Defendants/respondents filed their joint written statement as per

which it was pleaded that the plaintiff no.2/appellant no.2 Sh. Titu Ghosh,

husband of the appellant no.1/plaintiff no.1, was working as a driver with the

defendants and therefore he was permitted to live in the suit property. Sh.

Titu Ghosh left the employment of the defendants and was asked to vacate

the suit premises. The appellants however failed to vacate the suit property
RSA No.169/2013                                                  Page 2 of 5
 and consequently the counter claim for possession and mesne profits was

filed. The defendant no.1 was said to be owner of the suit property by

means of the documents being the agreement to sell, general power of

attorney, Will etc dated 16.6.1981.

4.           Both the Courts below have disbelieved the case set up by the

appellants of their being tenants under one Sh. Shiv Durga Prasad because

no such Sh. Shiv Durga Prasad was brought into the witness box and nor

was his ownership of the suit property proved.         On the contrary, the

respondents/defendants/counter-claimants proved their case and got

exhibited the documents of title as also the property tax receipts of the suit

property in the name of the defendant no.1. Other documents including of

the bills of water, ration card, election identity card etc were also proved by

the respondents/defendants.

5.           The relevant observations in this regard are contained in paras

15 and 16 of the judgment of the first appellate court and which read as

under:-

     "15.   Both parties did not produce any documents to prove that
     they were tenants of Sh. Durga Prasad in the suit property or that
     Shiv Durga Prasad had any concern with the same. The defendant
     no.1 examined himself as DW-1 and deposed by way of affidavit.
     He has deposed on the lines of the written statement and counter
     claim. DW-1 exhibited his documents of title that is GPA,
     agreement to sell, affidavit, Will and registered receipt as
RSA No.169/2013                                                  Page 3 of 5
      Ex.DW1/1 to DW1/5 respectively. He also proved his ration card
     and election identity card issued from the address of the suit
     property as DW1/6 and DW1/7. The demand notices of the MCD
     regarding property tax were proved as DW1/8 and DW1/9. Water
     connection in the suit property issued by Delhi Jal Board in the
     name of the defendant no.1 was proved vide bills Ex.DW1/11 and
     DW1/12. Property tax receipts in the name of defendant no.1 were
     exhibited as Ex.DW1/13 and Ex.DW1/14.
     16.     DW-2, the official from Sub Registrar Office Seelampur
     proved the registered receipt which was already exhibited as
     DW1/5. DW-3 is the official from the property tax department of
     MCD who deposed that the property was assessed to property tax in
     the name of Ganesh Dass Pahwa."
6.           I completely agree with the findings and conclusions of the

courts below because it is clear that neither Sh. Shiv Durga Prasad was the

owner of the property and nor were the appellants tenants in the suit

property. The appellant no.2/plaintiff no.2 was in fact working as a driver of

the defendants and he was permitted to live in the suit property as a licencee

pursuant to his being employed as a driver of the defendants and there was

no tenancy interest created in favour of the appellants/plaintiffs.

7.           A second appeal under Section 100 CPC lies only if there arises

a substantial question of law. In the present case, there arises no question of

law, much less a substantial question of law inasmuch as beyond doubt the

defendant no.1 is the owner of the suit property and appellants were only in

permissive possession of the suit property because appellant no.2 was

employed as a driver by the defendants.
RSA No.169/2013                                                   Page 4 of 5
 8.           In view of the above, there is no merit in the appeal, and the

same is therefore dismissed, leaving the parties to bear their own costs.




MARCH 20, 2014                                VALMIKI J. MEHTA, J.

Ne RSA No.169/2013 Page 5 of 5